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f^ "A M "^ O ' ^ 

l^arbarli College iLtbrarg 

CiyY'vY^^^- o.^iJ^U. 







MARCH ae, 27, and 29. 1908 









MARCH 26, 27, and 28, 1908 

a. w.- ..e .-.r,-. ■:.:■•■ X.I •. « •-■ 





BOyND 4>EC^7 1909^^ 


REED SMOOT, of UUh, Chairman. 
ALFRED B. KITTREDGE, of South Dakota. M. J. FOSTER, of Louisiana. 
MOSES E. CLAPP, of MInnosoU. F. B. GARY, of South CaroUna. 

F. B. BRANDEGEE. of Connecticut. W. H. MILTON, of Florida. 

CHAS. M. MORRIS. Clerk. 


FRANK D. CURRIER, of New Hampshire, Chairman. 
EDWARD U. IIINSIl.WV, of Nebraska. BENJAMIN K. FOCHT. of Pennsylvania. 

ANDREW J. BARCIIFELD, of Pennsylvania. WILLIAM SULZER, of New York. 
JOHN C. CHANEY, of Indiana. GEORGE S. LEG ARE, of South Carolina. 

CHARLJES McGAVIN. of Illinois. Le GAGE PRATT, of New Jersey. 

E. STEVENS HENRY, of Connecticut. WILLIAM B. WILSON, of Pennsylvania. 

CHARLES «. WASHBURN of MasAachusetts. EUGENE W. LEAKE, of New Jersey. 
CHARLES B. LAW, of New York. 




List of persons present at hearings 5 

Hearing. Thursday momi^, March 26, 1908: 

Statement by Georce Haven Putnam 11 

Association of the bar of the city of New York; recommendations of com- 
mittee on copyright 12 

Statements by — 

Harry P. Mawson 21 

Ligon Johnson 23 

Joseph I.e. Clarke 36 

Hearing, Thursday evening, March 26, 1908: 

Statements by — 

Joseph I.e. Clarke 39 

Henry J. Frohnhoefer 41 

Nathan Burkan 44 

Albert H. Walker 45 

B.F.Wood 48 

W. B. Hale 52 

George Haven Putnam 53 

Robert Underwood Johnson 54 

James L. Feeney 66 

George W . Ogilvie 68 

George Haven Putnam 73 

W. B. Hale 76 

Georee W . Ogilvie 78 

Hearing, Friday morning, March 27. 1908: 

Statements bv — 

Robert Underwood Johnson 79 

The copyright bills in comparison and compromise, prepared by R. R. 

Bowker, vice-president American Copyright League 79 

Statements by- 
George Haven Putnam i . 100 

W. A. Livingstone 101 

Decision of the Supreme Court in case of American Tobacco Co', v. Werck- 

meister 102 

Statements by — 

Alfred Lucking 116 

A. Bell Malcomson 118 

William Allen Jenner 120 

Hearing, Friday evening, March 27, 1908: 

Statements by— 

Edmond E. Wise 128 

George Haven Putnam 133 

C. P. Montgomery 138 

Thomas Nelson Pago 139 

William Parker Cutter 143 

Bernard C. Steiner 144 

J. J. Sullivan 146 

Rev. Dr. Henry Van Dyke 147 

Statement of copyright committee of American Newspaper Publishers* 

Association • 150 

Misfit notice of copyright 151 

Misfit penalties 152 

Misfit prosecution provisions 155 

Suggestions of amendment 156 

Pirie MacDonald 159 

Decision in case of Oliver Ditaon Co. v. Littleton et al ^S5L 


Hearing, Friday evening, March 27, 1908 — Continued. 

Statements by — TBge, 

Herbert Putnam, Librarian of Congress 163 

W.B.Hale 164 

Albert Walker 165 

Nathan B urkan -. 170 

Hearing, Saturday morning, March 28, 1908. 
Statements by— 

Ligon Johnson 173 

William A. Brady 180 

Harry Doel Parker 184 

Harry P. Mawson 186 

Daniel Frohman 186 

Charles Klein 186 

Victor Herbert , 188 

Nathan Burkan 194 

Memorandum of number of patents, graphophones, etc 196 

Dealers' contract — List prices 207 

Retail dealers' price list 210 

Price-maintenance contract 212 

List of publishers who have no contracts 223 

Harry Knowles 238 

The Librarian of Congress 241 

J. L. Tindale 243 

Harry H. Williams 247 

John J. O'Connell 248 

Horace Pettit 264 

Decision of Supreme Court in case of White-Smith v. Apollo Company. . 267 
Statements by— 

Albert H. Walker 276 

Frank L. Dver 281 

Draft of bill relative to mechanical copyright 293 

Paul H. Cromelin 309 

In the matter of the musical copyright act, 1906, of Great Britain . . 322 

The Men Behind, by M. Dorian.... 337 

George W. Pound 343 

Arthur Steuart 356 

Robert Underwood Johnson 360 

Music Composers and Copyright, from the Century Magazine 360 

Copyright Bills and the Authors' League 361 

Liffon Johnson : 363 

Wniiam Kendall Evans 365 

Dennis F. O'Brien 365 

Nathan Burkan 366 


Letters from — 

Music Engravers' Union of America 370 

B. F. Wood 371 

Letter and statements from Print Publishers' Association of America- 
Letter, April 4, 1908 372 

Statement I. Manufacturing clauses referring to pictorial ^phic arts only . 373 
Statement II. Copyright protection afforded American artists and pictorial 

publishers abroad 378 

Statement III. Requirements for affixing " Notice'* to original works of art 

before publication 380 

Statement of the Librarian of Congress relative to importation of authorized 
foreien editions of a work in which there is domestic copyright: 
I. Statement — 

A. Existing foreign statute law: Canada, Great Britain, the Con- 
tinent 382 

B. The commentators 388 

C. The practice, as evidenced by current opinion 389 

II. Partial list of authorities consulted 389 

III. Extracts from British statutes 392 

IV. Extracts from continental statutes and iwm commentators 397 

Suggestions submitted on behalf of the authors and publishers by George Haven 

Putnam, secretary of the Publishers' Copyright League 412 

Meaioraada Irom George Haven Putnam 414 


' by Williftm A. Jenner to the argument of the American Publiahera* Copy- 

_ bt Leaeue 417 

^Appendix A. Argument of the American Publishers* Copyright League. . . 419 
Appendix B. Extract from speech of Hon. John Sherman, February 9, 

1891 420 

Appendix C Extract from article by George Haven Putnam in the Inde- 
pendent 421 

Letter trom George Haven Putnam, transmitting letters from Arthur Steuart and 

Paul Fuller 421 

Relevancy of foreign statutes relating to importation. By William A. Jenner. . 422 
Si^ificance of *' under permission.*' Under it American labor could be 

mjured. By William A. Jenner 425 

Letters from — 

F.D.Millet 426 

Bernard C. Steiner 427 

C. H. Candley 428 

S. T. Cameron 429 

Edmond E. Wise : 431 

Arthur Steuart 432 

James L. Gerry, transmitting letter from American Tariff Commission 434 


Senators Smoot, Brandegee, Foster, Gary. 

Representatives Currier, Barchfeld, Henry, Law, Leake, Legftre, McGavin, Pratt, 
Snlzer, Washburn. 

Aguirre, A. A., Washington, D. C. 

Anderson, Will R. 
- Aronson, Rudolph, New York, N. Y. 

Bacon, Gerald F., representing Sanger <fe Jordan, play brokers, New York, N Y. 

Ball, Ernest. 

Ball, Henry Price, representing General Music Supply Company. New York. N. Y. 

Barney, Eaward A., clerk House Committee on Patents. 

Bayly, Charles B., secretary Music Pubb'shers* Association of the United States, 
Washington. D. C. 

Bell, R. B., Washington, D. C. 

Bloomingdale, E. W., New York, N. Y. 

Bowers, A. L., Dayton, Ohio. 

Brady, William A., New York, N. Y. 

Brannan, William A., Washington, D. C. 

Broadhurst, George, New York, N. Y. 

Burkan, Nathan, counsel Music Publishers* Association of America, New York, 

Bumham, Charles, president Theatrical Managers* Association of Greater New 
York, Wallack's Theater, New York, N. Y. 

Burton, Charles S., Chicago, 111. 

Cameron, Shelton T., Waeiiington, D. C. 

Casad, Campbell B. 

Clarke, J. I. C, first vice-president American Dramatists Club, New York, N. Y. 

Cole, T. L. 

Colman, Harry A., representing the Associated Press, Washington, D. C. 

Cooley, HoUis E., secretary National Association Theatrical Producing Managers, 
New York, N. Y. 

Cromelin, Paul H., vice-president Columbia Phonograph Company General, presi- 
dent American Musical Copvright League, New York, «. Y. 

Cutter, W. P., secretary the Library Copyright League, Librarian Forbes Library, 
Northampton, Mass. 

Dawson, N. E.,\Vashington, D. C. 

Donaldson, James W. 

Dyer, Frank L., Orange, N. J., representing Edison Manufacturing Company and 
National Phonograph Company. 

Eastman, Walter, New York, N. Y., representing Chappell & Co. (Limited), London, 

fidson, Joseph R., Washington, D. C. 

Engelhardt, F., St. Johnsville, N.Y. 

Evans, William Kendall, representing Words «nd^\]ks\c C\xj^i,^«^ "*^^''^'' ^^ *^i^ 

Falk, B. /., prasident Photographers' CopyT\g\it. Yeajgae oV Kxaafvca., ^«^ "*^^^^ 


Feeney, James L., president Trades Unionist Publishing Company, president Book- 
binders' Union, Loc*al No. 4, Washington, D. C. 

I*>ohman, Daniel, Lyceum Theater, New York, N. Y. 

Frohnhoefer, Henry J., Long Island City, N. Y., secretary Music Engjavens* UnioD 
of America. 

Gerry, James L. , chief Division of Customs, Treasury Department. 

Grove, H. C, Washington, D. C. 

Hale, William B., New York, N. Y., counsel American Iaw Book Oompany. 

Hams, Charles K., New York, N. Y. 

Harris, G. W., Washington, D. C. 

Hedgeland, F. W., Canton, Ohio. 

Herbert, Victor, New York, N. Y. 

Hoes, J. E., Government Printing Office, Washington, D. C. 

Hughes, W. J., Department of Justice, Washington, D. C. 

Hutch es(m, David, Washington, D. C. 

Jacobs, Walter, Boston, Mass. 

Jenner, William A., New York, N. Y. 

Johnson, Ligon, counsel Dramatists Club of America, New York, N. Y. 

Johnson, Robert Underwood, secretary American (Authors*) Copyright League, 
Editor Century Magazine, New York, N. Y. 

Kauser, Miss Alice, New York, N. Y. 

Kirk, Hyland C, Washington, D. C. 

Klein, cWles, New York, N. Y. 

Klein, Manuel, New York, N. Y. 

Knowles, Harry, representing White Rats of America, New York, N. Y. 

Lester, J. P. 

Levensaler, Alfrcnl W., Washin^n, D. C. 

Livingstone, William A., president Print Publishers* Association of America, 
Detroit, Mich. 

Low, H. N., Washington, D. C. 

Lucking. Alfred, counsel Association American Directory Publishers, Detroit, Mich. 

Lusk, Milton W., Washington, D. C. 

Mac Donald, Pine, New York, N. Y., represt^nting Photographers' Copyright League 
of America. 

Malcomscm, A. Bell, representing McLoughlin Bros., New York, N. Y. 

Malcomson, Mr., jr., New York, N. Y. 

Marceau. Col. T. C, New York, N. Y. 

Martin, Henry B., New York, N. Y. 

Mawson, Harry P., chairman committee on copyright legislation, American Drama- 
tists Club, New York, N. Y. 

Maxwell, George, New York, N. Y., representing Boosey & Co., I/ondon, England. 

Miller, Owen, swretary Ameri(*an Federation of Musicians, St. Ix)uis, Mo, 

Millet, Frank D., representing National Academy of Design, New York, N. Y. 

Montgomery, C. P., Tri^asury Department, Washin^n, D. C. 

M(X)re, Edward B., Commissioner of Patents, Washmgton, D. C. 

M(H)n*, Thomas J., Philadelphia, Pa. 

Morris, Chas. M., clerk Senate Committee on Patents. 

MoRMs Theodon?. 

O'Brien, Dennis F., representing George M. Cohan, New York, N. Y. 

O'Connell, J. J., representing National Association Piano Manu^turera of the 
UnitcHl States, New York, N. Y. 

O'Connor, Jeremiah, W^ashington, D. C. 

O'Donnell, Charl(« L., Brookland, D. C. 

Ogilvie, George W., Chicago, 111. 

Page, Thomas Nelson, Washington, D. C. 

Parker, Harry Dorl, New York, N. Y. 

Park<»r, Seward, Washington, D. C. 

Parsons, T. C, repres(.»nting International Typographical Union, Washington, D. C. 

Paullin, (\ O., Washington, D. (\ 

Pettit, IIorac«\ representing Victor Talking Machine Company, Philadelphia, Fa. 

Pound, George W., general counw^l DeKleist Musical Instrument ManufokCturing 
Company, and lludolpn-Wurlitzer Company. 

Putnam, George Iiaven, secretary trie American Publishers* Copyright League. 
NewYork, N. Y. 

Putnam, Herbert, Librarian of C'ongress. 

Rakemann, Herman C, WashingUm, D. C. 

Reb<»Il. Emil. 

Reed, Dave. 

Richards, F. Dewey. 


Saanett, E. C, Washin^n, D. C. 

Scantling, P. L., Washington, D. C. 

Shillaber, William, jr., ^ew York, N. Y. 

Smith, D. E. 

Solbeig, Thorvald, Register of Copyrights. 

Sonneck, Oscar G., chief Music Department, Library of Congress. 

Steiner, Bernard C., representing American Library Association, librarian Enoch 
Pratt Free Library, Baltimore, Md. 

Steuart, Arthur, chairman copyright conunittee, American Bar Association, Balti- 
more, Md. 

Strohmeyer, Henry A., vice-president Underwood & Underwood, Arlington, N. J. 

Stuart, Clinton, American Dramatists Club, New York, N. Y. 

Sullivan, J. J., chairman committee on copyright law. International Typographical 
Union, Washington, D. C. 

TerrV, C. D., East Moriches, L. I. 

Tinaale, J. L., counsel for G. Schirmer, New York, N. Y. 

Thompson, John A., Riverdale, Md. 

Utley, Henry M., librarian public library, Detroit, Mich. 

Van Dyke, Henry, D. D., LL. D., Princeton, N. J. 

Walker, Albert H., New York, N. Y. 

Walton, Charles, Washington, D. C. 

Wattee, George A., Toronto, Ontario. 

W^eber, Josepn N., president American Federation of Musicians, Cincinnati, Ohio. 

Wliitman, J. A., representing National Cameraphone Co., New York, N. Y. 

Williams, Harry H., representing Words & Music Club, New York, N. Y. 

Wise, Edmond E., New York, N. Y. 

Witmark, Isidor, representing M. Witmark & Sons, New York, N. Y. 

Wood, B. F., Boston, Mass. 


Committees on Patents, 
Senate and House of Representatives, 

Washington, D. (7., March 26, 1908. 

The committee met at 10 o'clock a. m. in the Senate reading room, 
Congressional Library. 

Present: Senators Smoot (chairman), Brandegee, and Gary, of the 
Committee on Patents of the Senate; also Representatives Currier 
(chairman), Barchfeld, McGavin, Law, Sulzer, Legare, Pratt, and 
Leake, of the Committee on Patents of the House of Kepresentatives. 

The Chaibman. I should like to say to those who are interested in 
this proposed legislation that while no definite programme has been 
mapped out, there has been discussed and tentatively agreed to a plan 
of procedure. We will take one of the bills for instance, Senate bill 
2499, and we should Uko to have the parties who are interested in the 
different sections of the bill and have objections to that bill to make 
their objections known, and we will take up the sections so designated 
for consideration. All the other sections of the bill to which there 
may be no objection will be passed by, with the understanding of 
course, that all agree to the provisions of the imobjected sections. 

I will state, however, that if any one comes in later who is not pres- 
ent this morning, and objects to any section, we will gladly hear the 
obiections. The letters which I have in my possession object to the 
following sections in Senate bill 2499: Sections 1, 4, 10, 13, 14, 16, 17, 
25, 27, 31, 33, 34, 44, and 46. 

Gentlemen, if there are any other sections which are objected to by 
anybody present, we should like to have them make manifest their 
obiections at this time. 

Mr. Mawson. I should like to inquire to which bill the objections 
which you have referred to apply. 

The Chairman. My remarfe nave reference to Senate bill 2499, 
known as the Smoot bill. 

Mr. Nathan Burkan. I wish to suggest an amendment to section 
40 of the bill. 

The Chairman. As to many of these sections it has been thought 
that VBiy little would be said, while as to others considerable time 
will be taken in their discussion. I have thought, which has met the 
concurrence of the chairman of the House Committee on Patents^ that 
perhaps there should be some division of -time as to these different 
sections. We have thought that perhaps to-day and to-morrow 
should he taken up with the consideration of the sections other than 
those referring to tne musical provisions of the bill, and that Saturday 
ahould be given over for that particular question, and that on Satur- 
day there should .be some division of time between those who are in 


faVor of the so-called Kittredge bill and those in favor of the so- 
called Smoot-Currier bill, or those who oppose them altogether and 
have some other proposition to present. 

Representative Currier. Ma^ I suggest in this connection that we 
will expect gentlemen representing eacn side to arrange among them- 
selves ror a division of the time? 

The Chairman. I thank the chairman of the House Committee on 
Patents for his suggestion. 

I wish to say, so tar as the committees are concerned, that we want 
to obtain durmg these hearings all the information ootainable, and 
that if hearings during the daytime are not sufficient, we are perfectly 
willing to take the evening for them. 

I wish also to annoimce that to-<lay, at the adjournment of the 
morning meeting, at 12 o'clock, we will ask you to come here this 
evening at 8 o'clock, because this afternoon the Senate has under 
consideration what is known as the Aldrich currency bill, and there 
will be votes upon various amendments to it, and it will be almost 
impossible for members of the Senate Committee on Patents to be 
absent, and I have been given to understand also that it is very 
important, so far as the Members of the House are concerned, that 
they shall be present at the session of the House this afternoon. 
Therefore, if there is no objection, when the meeting adjourns this 
morning, we will adjourn to meet here in this room at 8 o'clock 

Mr. BuRKAN. In making objection to section 40, I refer to the 
Kittredge bill. I find in your till it is section 41. 

The Chairman. We will call it section 41 instead of section 40. 

Mr. Albert H. Walker. Am I right, Mr. Chairman, in imder- 
standing that the Currier bill and the Smoot bilFare identical? 

Representative Currier. Not absolutely. 

The Chairman. There are two or. three differences, I think. 

Mr. Walker. They are nearly the same? 

The Chairman. Nearly the same. 

Mr. Walker. Am I also right in understanding that the Kittredge 
bill and the Barchfeld bill are nearly the same? 

The Chairman. Nearly the same. I think there are two or three 
differences between those bills. 

Mr. Dennis F. O'Brien. Mr. Chairman, in the division of the subject 
as you have indicated it, if the interest of those who are concerned 
primarily in the musical part, so-called, should be affected by such 
legislation as the musical people ask for, will they be free to present 
their arguments upon that point outside of the time that has been 
specified for the musical part, so-called? 

The Chairman. Whom do you represent? 

Mr. O'Brien. I represent Mr. Ueorge M. Cohan, the composer. 
He finds certain conditions now existing in his field of endeavor 
which threaten his property interests. 

Representative Currier. His property interest is in the musical 

Mr. O'Brien. Yes, sir; but also in the dramatic composition, 
which is a part of the musical, also. Can he touch upon those things 
to-day or to-morrow? 

The Chairman. I would not want him to touch that subject at all 
until we come to it, and that I think will be Saturday. 


Mr. O'Brien. Then I understand he will present his side of the 

The Chairman. Whatever he has to say in relation to other sec- 
tions he may say, but we do not want him to present the music ques- 
tion until Saturday, when the whole subject will be gone into. 

Representative Currier. We desire as tar as possible to segregate it. 

Representative Sulzer. At that time you can present both sides of 
the question, the dramatic and musical. 

Mr. William B. Hale. Will you please add sections 6, 38, and 39 
of the Sm.oot bill? 

Mr. Walker. Will you kindly^or me, add section 28? 

Mr. John J. O'Connell. Mr. William A. Jenner and Mr. Edmund 
E. Wise, both members of the New York bar, wish to be heard in rela- 
tion to section 34. They can not be here to-day, and they ask me 
to request to set apart some time for them to-morrow. 

The Chairman. We will gladly hear them to-morrow. You may 
so inform them. 


The Chairman. Mr. George Haven Putnam, secretary of the Amer- 
ican Publishers Copyright Deague, is present, and from a letter that 
I have received from him as a representative of the authors and the 
publishers he makes, I suppose, oDJections to as many of the sections 
as anyone interested • ana perhaps it would save time, and it would 
be proper now^ to ask Mr. Putnam to make whatever statement he 
desires in relation to the sections in which he is interested. 

Mr. Putnam, Mr. Chairman and gentlemen, I will point out that 
our interests are in the main for the enactment of the substance of 
the provisions of the Smoot-Currier bill with certain changes, not 
many, but important, in which the provisions of the Kittredge bill 
differ from those adopted by your two committees. I will point out 
further, and partly with reference to the application on behalf of Mr. 
Jenner, whicn has just been submitted, that we are here more par- 
ticularly to withstand the contention, as I happen to know from Mr. 
Jenner's printed argument, that he will desire to present, and, there- 
fore^ we will appreciate keenly the courtesy of speaking later in main- 
taimne the bill against the oDJections, which will be presented here. 
Therefore, I may ask to be heard later. 

The Chairman. That has reference to section 34 — the importation 
clause of the bill. 

Mr. Putnam. Yes, sir. 

The Chairman. We shall be perfectly willing, after Mr. Jenner 
has made his statement objecting to it, to hear your answer. But 
as far as the other sections are concerned, as mentioned in your 
letter, the committee will be very glad, inaeed, for vou to proceed. 

Mr. Putnam. I understand that tne afl5rmative will have the final 
word against anj personal objections, especially as to technical 
matters, with which the members of the committee may not be con- 

Section 14 of the Currier and Smoot bills, page 1 of the pamphlet in 
parallel columns, which has been prepared in the Bureau of Copyright, 
imposes as a penalty for a failure to make deposits of copies witnin 
the time specified the forfeit uro of the copyri^rht. This penalty has 


been objected to, and we should be jglad if the recommendations of 
the registen of copyrights, as submitted at the previous hearing, 
hold good in the final enactment. The forfeiture of the copyright for 
a technical failure is what obtains in substance in the present statute, 
but it obtains in no other copyright statute in the world. It is always, 
even in England, France, Germany, and Italy, a technical inadequacy. 

Representative Cxtrrier. You Imow the action very recently taken 
by the special committee on copyrights and trade-mark of the bar of 
the city of New York, of which committee Mr. Paul Fuller is chair- 
mai\, r^arding that matter. 

Mr. ruTNAM. They have not reported their action to me, I am 
speaking in ignorance. 

Representative Currier. They go very much further than the 
bill goes in the line of forfeiture. ^ They recommend unammously 
now that, unless within a certain limited time copies are deposited, the 
copyright shall be forfeited. 

Mr. Putnam. I should not make any final objection to that, 
because as a fact the publishing house that is properlv organized ana 
in touch with the copyright office will have no difficulty. The objec- 
tion I am submitting is rather on behalf of the authors, who are afraid 
lest some action which they can not control, some inadvertence out- 
side of their direct responsibility might forfeit the copyright. 

Representative Currier. Of course, you realize that a fine would bo 
of no avail whatever in dealing with a foreigner. We can not enforce 
our penal statutes in Europe. 

Mr. Putnam. It would be difficult, I admit. 

The Chairman. I should like to submit to you the recoinmenda- 
tion of the bar of New York referred to by Mr. Currier. This is the 
unanimous opinion of the bar. 

Mr. Putnam. It should carry great weight, sir. 

The Chairman. It is *'that should the copies called for by section 

13 of this act not be deposited, as herein provided, within one month 
from any part of the United States, except an outlying territorial 
possession of the United States, or within three monthS from any 
outlying territorial possession of the United States, or from any foreign 
countr>^ the copyright shall be deemed forfeited.'* That is wbutt 
they recommena. It may be well to insert in the record at this point 
their suggesticms : 


Special commitiee on copyright and trade-mark: Messrs. Paul Fuller, William G. 
Choate, John K. ParsonH. John L. Cadwalader. Henrv Galbraith Ward, Arthur H. 
Mafiten. William A. Jenner. Franklin Pierce. Edward M. Shepard, James W. Hawes. 

To the honorable the Committees of the Senate and House: 

At a meeting of the special committee on copyright and trade-mark, held at the city 
of New York, on the 20th day of March. 1908, at which were present, Messrs. William 
G. Choate. William A. Jenner. Franklin Fien*c. and Paul Fuller, chairman, the 
I>ending })ills to amend and consolidate the copyright laws, were taken up for discua- 
sion. and the following recommendations to your honorable committees were adopted: 

Sections 13 and 14 of II. R. 243 do not compel at any time the deposit of two copies 
of a copyrighted work with the register of copyrights. 

By tne language of section 14. tnere is no obligation to deposit these copies, unlen 
the register ofcopyrishts should make a demand for them. In the opinicm of the com- 
mittoe, this deposit should be obligatory, and they suggest, therefore, that lines 1, 2, 3, 


4, and -put ol 5, on page 8 (section 14), be stricked out and that the section, as amended, 
read as follows: 

** Section 14. That should the copies called for by section 13 of this act not be depos- 
ited as herein provided, within one month from any part of the United States except 
an outlying territorial possession of the United States, or within three months from 
any outlying territoriaf possession of the United States, or from any foreign country, 
the copyriffht shall be deemed forfeited." 

Section 94 of the bill prohibits the importation of a foreign edition of a book copy- 
righted in the United States, even though the book has been copyrighted abroad by 
the author. There are several exceptions to this prohibition. Subdivision '* e " para- 
graph fint makes an exception for a single copy of such book imported for use and 
not for sale "under permission given by the proprietor of the Amencan copyright." 

The committee is of opinion that this permission of the proprietor of the American 
copvright should not be imposed upon the purchaser of such a book. The purpose 
of the copyright law, in accordance with the provisions of the Constitution is to pro- 
tect authors. In the case mentioned the autnor gets the benefit of his foreign copy- 
right by the purchase of the forei^ copyrighted book, and the scholar or seeKer alter 
knowledge, who desires the original work should not have imposed upon him the 
consent of any person to the exercise of that privilege. 

The committee suggest that the words "under permission nven by the proprietor 
of the American copyright," in lines 21 and 22, p. 19, be stricken out. 

Section 44 of the law (p. 23, line 24) is declaratory of the prevailing rule of law as to 
which some question was raised at the preliminary conferences, to wit, that the copy- 
right is distinct from the ownership of a material object . It has been suggested tnat 
the language of this section providing that the sale of the material object shall not 
constitute a transfer of the copyright nor the assignment of a copyright constitute 
the transfer of the title to the material object misht be invoked to hinder and pre- 
vent the resale of any copyrighted books purchased from the publisher, and mig}it be 
utilized to r^ulate and keep up prices of retail dealers. 

Any such danger might be obviated by adding to this section the words "but noth- 
ing in this act shall be deemed to forbid, prevent, or restrict the* transfer of any copy 
of a work copyrighted under this act the lawful possession of which has been obtained." 

All of which is respectfully submitted in addition to the recommendations sub- 
mitted to your honoraole committees on the 15th of December, 1906. 

Dated New York, March 21, 1908. 

Paul Fuller, Chairman. 

Mr. Putnam. 1 have their wording before me, and I know the source 
from which it came. 

The IjIbrarian of Congress. The Publishers' Weekly is respon- 
sible for it. 

Representative Sulzer. Suppose instead of putting in the words 
"shall be deemed forfeited'* we make it "may be forfeited/' leaving 
it discretionary wnth the Librarian. 

Mr. Putnam. I am not sure whether that would not impose a deli- 
cate responsibility. I submit the objection, which is not a final 
objection, on the part of the authors, and I will pass on, with your 

Section 16 includes as an additional manufacturing requirement, 
after the word "printing" the words "and binding, and there is 
an appearance of consistency in making the manufacturing require- 
ment complete. I point out, however, as a practical bmder and 
Erinter, that there is no real necessity for that prohibition. The 
ook must be printed here. There is no possibility, under any con- 
ditions, of making it a profitable industry of sending editions across 
the Atlantic, to Be bound outside of the United States, and back 
again. The binding of the copyrighted book will be done here. It 
is, however, the routine to utilize artistic binders in Paris, in Flor- 
ence, and in Leipsic for the binding of individual copies of certain 
books, which are bound as a matter of artist designing. The Amer- 
ican book is printed here, copyrighted here, and bound there, and of 
course it pays the duty. The trade is on the 'p«LX\, \io\. qtdX^ vA ^\^c»- 


which are now giving to American citizens full copyright privileges. 
I have had occasion thuee times within the last eight years to stand 
up in conventions of continental authors and publishers to prevent 
representations being made to their respective governments for the 
cancellation of their copyright relations with the United States on 
the ground that we were not treating them equitably and not giving 
them what they were giving to us. I have succeeded mainly because 
certain bills were penmng here which were to remedy the evils com- 
plained of. 

Representative Gubrieb. Then what would }^ou say if the conmiit- 
tee changed that so as to apply simply to scientific works t I suppose 
99 per cent of the cheap lithographs of American subjects sold in this 
country are made abroad. 

Mr. ruTNAM. I used the scientific as my first division, because I 
wanted to refer to a couple other divisions of the same matter. The 
lithographers have properly secured under the protective tariff system 
in force in our country a toriff of 35 per cent against importations. 
So far as concerns these cheap UthoOTaphs that you refer to, vou will 
find, irrespective of the copyright, tnat the American manufacturer, 
as we publishing manufacturers have to do, has to take his chance 
with competitors abroad with the protection under the tariflF. 

Representative Cubbieb. I realize that. 

Mb. Putnam. I suppose if 35 per cent is not considered high enough 
to give lithographers the prot^jtion they require, it could be made 

Kepresentative Cubbieb. I made that suggestion to show that 
lithographs of subjects in a foreign country do not necessarily have to 
work on the groimd, if 99 per cent of tne lithographs of American 
subjects are now worked out in Grermany. 

Mr. Putnam. That may be. But how badly or how well are they 
done ? I am speaking of the higher group of art productions. I refer 
in the first place to the rights of foreign authors imder our interna- 
tional obligations to them, but I may now refer to the rights of Ameri- 
can citizens residing abroad — scientists doing scientific work abroad, 
artists doing art work abroad; and all American artists of education 
spend a number of years abroad. While there they have the oppor- 
timity to earn their livelihood in part by doing art work. They should 
have the lithographic designing done under their own supervision. 
If an artistic reproduction is to oe made of Mount Blanc or ot. Peter's 
in Rome or any other pointy the artistic effect is very much more suc- 
cessful — I do not say it is impossible to produce it on this side, but it 
is much more effective if the lithographic artist can have directly 
under his observation the object of the original work. We do do good 
lithographic work on this side, but the best lithographic work of an 
art subject is made when the lithographer is in touch with the subject. 

If an American writes a book having to do with art and wants to 
have his book illustrated in the most effective lithographic method, 
he goes abroad and works there with the lithographer and produces 
the illustrations for the book. But under this provision he is then 
forbidden to retain the copyright if the lithograpnic illustrations pro- 
duced abroad are associated with the text. That is not an additional 
advantage given to the American lithographer, but it Ls a prohibition. 
You prohibit our American art workers, our American science work- 
ers, who are workers just as much as the mechanical workers, workers 


representing the higher education of this country, from doing their 
science and art work as they want to do it. I do not believe that you 
will decide that that is in line with the higher educational policy of 
this country. 

1 may refer also to the fact that it will constitute a legitimate con- 
stitutional grievance on the part of countries with which we are in 
copyright relations. There is consistency in putting in here the pro- 
hibition as t6 printing, but it is different as to lithographic work, and 
I can point out the substantial difference. The typesetting that is 
done here does not modify in any way the conditions of publishing, 
but if the lithographic work must be done here it would modify the 
whole condition so far as to forfeit the copyright in a text which is 
suflBciently important to be accompanied by the highest grade illus- 
trations produced where they ought to be produced. The loss to the 
American lithographers in such a matter would not be a loss. They 
would have as tney now have, and as they are entitled to have, for they 
are good workmen, the large mass of the business. I am not speaking 
of the big group of books, but of a very important group of business — 
the dozens and possibly hundreds of books on science and art, and art 
is the more important and the more essential. 

The Chairman. Section 25 is the next one that you mentioned in 
your letter. 

Mr. Putnam. Section 26 is what I have marked here. Possibly it 
is wrongly written in the letter to you. 

The Chairman. In this letter it is 25. 

Afr. Putnam. I should have said 26. 

The provision as worded by Senator Kittredge in his bill, with 
which Mr. Barchfeld's bill is in accord, in regard to the extension of 
copvrights, represents the consensus of opinion arrived at by the 
autnors and publishers after a discussion extending over some 
eighteen montns. I appear here as two single gentlemen rolled 
into one. I speak for two leagues. We desire to secure this par- 
ticularly for the older authors, some of whom are no longer with us, 
notably Mr. Stedman. 

Representative Currier. Would not their rights be absolutely pro- 
tected by a renewal period, so far as the authors themselves are 
concerned, distinguished from the pubUshers? Would it not often 
be to the author's advantage to have a renewal term instead of ont 
fixed period ? 

Mr. Putnam. The renewal term which you have in your mind as 
desirable was really provided for in this provision which Senator 
Kittredge has adopted and which has been modified in the Smoot- 
Currier Dili. It was designed to secure for the authors the extension 
of the copyright and it was also desired to secure the advantage of 
that extension for their widows or children. It was pointed out 
that if a copyright could be revived after the forty-two years which 
constitutes the largest possible term under the existing statute, a 
publisher who had a large investment in plates and in publishing 
rights might risk the forfeiture of that property. If, for instance, 
!^ughton, Mifflin & Company, representing tne old firm of Ticknor & 
Fielcfs, and with a long list of American authors, were publishing as 
they are publisliing a hundred or more important books under a 
royalty arrangement, and if under the agreement as it had at first 
been shaped they knew, as they did know, that for forty-two -^^^^x.^ 

31)207—08 2 


they would have the exclusive control under agreement with the 
author, they would also know that at the end of that forty-two 
years they would have the right to continue publishmg, subject to 
the open competition of the market. With that knowledge under 
the law they made investments. The investments made by that 
particular fu*m under the law as it stands amount to hundreds of 
thousand of dollars. The extension of the copjTight ffiving to the 
author a new exclusive control after the expiration of nis firat term 
would of course place the author in a position to say to the publisher, 
" You renew this agreement under my terms or you must forfeit the 
investment you have made in the stereotype or electrotype plates 
and in the publishing expenditures you have made. Come to my 
terms or I will go to -some other pubhsher." 

Representative Currier. As it is, suppose the publisher says to 
the author "You consent to this on my terms.*' \V hat then? 

Mr. Putnam. I want to say that notwithstanding that certainty 
of risk the publishers agree with the Authors* League that they 
should have that extension of copyright for all books of which they 
still retain under original agreement tlie control of the copyright and 
that the publishers snould accept that risk of losing their entire invest- 
ment in stereotype or electrotype plates. 

The Chairman. I wish to say tnat all the letters I have received 
from authors, and they are many, object to that very provision which 
you speak of. They want to carry out whatever tlieir original con- 
tract may be with the publisher, and when that contract is carried 
out as originally agreed to, they want it to cease ; and if there is 
another contract to be made they want to be at liberty not only to 
make a contract with their original publisher, but with any other 
publisher who may perhaps give them better terms than the originid 

Mr. Putnam. The clause as worded in the Kittredge bill gives them 
that privilege for all the copyrights which have not been sold out- 
right, of which the authors or their widows or children retain the 
ownership. But the extension of the copjTight in those books 
involves the risk of a very serious loss of property on the part of pub- 
lishers who have made investments under the protection of the exist- 
ing law, amounting to a «:reat many thousands of dollars. The con- 
sensus of oi)inion among the authors — and thev will be here to-morrow 
to confirm tliat expressicm of opinion which thev arrived at after 
these various (liscussi<ms--was in favor of extending the cop^Tight 
of that class of books in which they still retained ownership of the 
copyright, but as to the class of books for which the cop>Tight had 
been sold outright, the application for the extension of the copyright 
must be joined in by the purchaser or his representative. The reason 
for that is obvious under several headings. The most important con- 
sideration is in connection with composite works — cyclopedias and 
what not. Take a law-publishing concern, such as the West Publish- 
ing Company. It has millions of dollars invested in law encyclope- 
dias. They have bought contributions from several himdred con- 
tributors at the prices fixed — prices satisfactory to the contributors. 
Under the law as it now exists, they have full control of those contri- 
butions. If that copATight, after" the termination of the twenty- 
eight years — and usually composite works are not extended with tne 
fourteen years, it is very seldom that the extension is made — if at the 


expiration of the twenty-eight years those contributors could revive 
their cop>Tight under the provision as it has been worded in the 
Smoot-Currier bill, hundreds of authors or people who were still less 
interested in the original obligation or agreement than the authors — 
sons or representatives of the authors — would have the right to go 
to the publishers of the encyclopedia and say, *'You must cancel the 
million dollars that you have invested here unless you will pay to me 
and to me all through the letters of the alphabet a penalty price for 
the renewal of the right to publish/ or for the right to continue the 
publication of the articles in question.'* 

Representative Currier. Why not differentiate between a com- 
posite work and the work of a single author? 

Mr. Putnam. It seems to me more logical, where the copyright has 
been sold outright. Supposing he would retain not'onlj the exclu- 
sive right for the term of the copyright, blit a competitive right be- 
yond that term, the publisher has made his great investment. 

The Chairman. When the sale was made outright it was based 
upon the duration of a copyright at the time the contract was made? 

Mr. Putnam. Yes, sir. 

The Chairman. Now, if we extend the copvright, do you think it 
proper for him still to claim that extension or time? 

Mr. Putnam. I do not. It would have to be a new application. 
What I point to is that in purchasing the copyright the purchaser 
knew that he secured under the law tne exclusive right only for the 
term of twenty-eight years, but he knew that thereafter he would have 
what I call a competmg right; that nobody could destroy liis plates. 
Somebody might reprint tne book, but he would have still a prop- 
erty which he might utilize. But under the bill, as you have pro- 
posed it, there is this difficulty. The investment on his part is not 
merely the cost of the plates, but the expenditure and tne time in 
making a market for the book for twenty-eight years, and that invest- 
ment can be canceled by any one contributor unless his contribution 
should be replaced by tnat of another in the composite work, which 
would be a oifficult thing to do. 

The suggestion made by the pubUshers and accepted by the authors 
with respect to the extension of a copyrij^ht which has been sold out- 
right was that the two parties shoulcf join together. The publisher 
would doubtless be glad to secure a further exclusive right, just as it 
is to his interest to secure an exclusive right under his origmal con- 
tract. The authors were satisfied with that. It made a logical dis- 
tinction between a copyright sold outright and a copyright the owner- 
ship of which resided with the author, whereas under the bill as it is 
worded the value of hundreds of thousand of dollars of property may 
be canceled by the author. We have taken that risk 

Representative Currier. You assume that risk when you purchase 
a copyright for a fixed term ? 

Mr. Putnam. No, sir. We knew that at the end of the term we 
could go on and use the plates. We knew they could not cancel the 
use of the plates. But it the author resumes an exclusive control he 
can say: " xou shall not publish any more." 

The Chairman. As a publisher, that cuts very Uttle figure in your 
calculations with respect to what you shall give the author, in view 
of the fact that of all the books that have been pubUshed in the 
United States up to the present time you can alnio^l ^csvycyX. <3^^*^^«. 
fingers nearly all that have lived loBgpr lYi^Ti Weo.\i5-«^^^QX»^^^vx^* 


Mr. Putnam. This proportion, I am glad to say, is increasing, but 
of course the most important property consideration is in the books 
I have referred to — composite works. 

Representative Currier. Mr. Clemens told me that he sold the 
copyright for Innocents Abroad for a very small sum, and he got very 
Uttte out of the Innocents Abroad until the twenty-eight-year period 
expired, and then his contract did not cover the renewal period, and 
in the fourteen years of the renewal period he was able to get out of 
it all of the profits. 

Mr. Putnam. That is perfectly true, and he was entitled to it. 
But Innocents Abroad is a book out of a million, as the Senator from 
Utah has well remarked. He would get it under the suggestion I 
have made. 

The ChairmaV. He would get it provided the publisher would 
agree to give it to him. 

Mr. Putnam. But bear in mind the publisher could not get it 
unless the author would agree with him. 

Representative Currier. But the author is in the publisher's 

Mr. Putnam. No, sir; because the publisher, bear in mind, could 
not earn a dime off the book unless he could persuade the author to 
make an agreement with him. 

Representative Currier. Neither could the author get another cent 
unless the publisher would consent. 

Mr. Putnam. No; but is it to be supposed that two ordinary Ameri- 
can citizens will stand out and refuse to come to an agreement? That 
is not the American way of doing business. 

Representative Currier. I have known people up in New England 
to do that. 

Mr. Putnam. You have a stubborn set of neighbors, I am afraid. 
You are reallv more strenuous in regard to this provision of the section 
than the authors themselves are, and it will appear so to-morrow; but 
I claim, with justice, to speak for them to-day and to say that they 
want the provision as originally drafted and as retained by Senator 
Kittredge, which you gentlemen have modified. 

I come now to section 27, the question of the minimum penalty. It 
will be found on page 8 of the comparative pamphlet. A minimum 
penalty for an infringement of the copyright in tiie sum of $250 was 
arrived at in the draft of the bill, which was the result of our long 
series of discussions. 

Representative Currier. In the Currier bill that minimum has been 

Mr. Putnam. There was some discussion as to whether the mini- 
mum should be $100 or $250. It was finally fixed at $250, and it is, 
gentlemen, of essential importance for the protection of the literary 
mterests that there should be some minimum. 

I have been called as an expert witness in copyright cases, mainly 
in cases of infringements of copyrights by newspapers. In the pap* 
ticular case I have in mind, the newspaper took from a copyrighted 
book and printed in its columns a story without acknowledgment and 
without any payment until it was haled into court, and the court 
ordered it to stop printing the story. There were three chapters 
which the readers of that unfortunate paper never got. But then we 
claim to claim, as I did as a witness, dams^es on behalf of the interests 


• • 

represented. The court declined to admit that the book had been 
iniured or that the author had been injured, or that the publisher, 
who had a pubHshing right, had been injured, although the pub- 
lisher's serial right for himself and the author had been injured, and 
he directed the jury to bring in a nominal verdict. I point out the 
fact that these provisions are mainly to be used as deterrents rather 
than as penalties. 

Representative Cltrrier. The thing that impressed us is the fact 
that m the present law there is a minimum and no maximum. We 
insert a maximum and in the old bill struck out the minimum, and it 
seems to me the minimum ought to be restored. 

Mr. Putnam. I am very glad to find vou are in accord with that. 
There is no reason why there should not be a minimum. 

The Chairman. What section do you refer to? 

Mr. Putnam. Page 8 of this pamphlet, section 27, subsection b, in 
which there is the wording: "In no case exceed the sum of $5,000.'' 

Representative Leake. You are speaking of the other bill. 

The Librarian of Congress. I think all those references are to 
the Kittredge bill. It is not the same bill. 

Mr. Putnam. I am afraid I have confused the gentleman by making 
references under this heading. 

The Chairman. It is section 28. 

Representative Sulzer. Page 16. 

The Chairman. It has been restored in the Smoot and the Currier 

Mr. William Allan Livingstone (president Print Publishers' 
Association). It is in two of the bills. It is not in the other two. 

Mr. Putnam. It is in the Smoot-Currier bill, but not in the Bat- 
tredge or Barchfeld bill. 

The Chairman. The next section referred to in your letter to me 
is section 33 — the importation of copies. 

Mr. Putnam. So far as that section is concerned, it is going to be 
assailed, and we want to have a few words in closing in regard to it. 

I need not detain you further, gentlemen. 


The Chairman. Whom do you represent, Mr. Mawson? 

Mr. Mawson. The American Dramatists' Club. 

Mr. Chairman and gentlemen, the American Dramatists' Club de- 
sires to deal specificaliy with what is known as play piracy. That is 
the great evil from which we suffer, and it is a species of piracy that is 
so peculiarly constituted that it deserves a little description as to its 
modus operandi. 

A play is produced; perhaps produced in any part of the United 
States. Frequently they try it out in San Francisco or New Orleans, 
Chicago or Pittsburg, Washington or some other town. But by 
some mysterious process of reasoning a play only secures its full mar- 
ketable value when it reaches New York and gets the New York 
verdict. Now, the significant fact is that a play is never pirated until 
it does get that verdict in New York. It may go around the country 
for several months, frequently losing money for the manager, who is 
waiting for the verdict of New York, consequently earning very little 
royalty for the author, but Just as soon as it reaches New York aELd\a.^ 
success then it is stolen. 


* • 

Now, the process of stealing a play is probably the most ingenious 
thing in the realm of the appropriation of copyrighted rights. An 
expert stenographer secretes himself somewhere in the theater and 
he takes down word for word everything that is spoken in the play. 
After he has gotten all the words in the play he then appropnates 
all the business of the play. That bit of business, as we call it, is 
derived from the motive assigned bj the author for that particular 
action. It is a part of the dramatic composition. He steals that. 
After he has gotten all that, he takes down the makeup of the actor, 
everything he wears, the arrangement of the face, the beard or wig 
if he wears one, the costume. Then he comes down to the scenery; 
the properties that are used. All of the play is stolen in that way. 
Now he has to find a market for that, and that market is in Cm- 
cago, and there it is sold. That property costs the manager from 
$10,000 to $25,000 to produce, and that entire play is sold for $5 
a copy. 

Representative McGavin. According to that statement, we in 
Chicago take the stolen plays from New York. 

Mr. Mawson. You do, sir. I regret to say that the headquarters 
of play piracy in America is Chicago. 

How does he get that stolen manuscript on the market? He does 
not put out a sign **Play broker," *'rlay a^ent,*' as a reputable 
vencfor of manuscrijpts would do. But he has m front a beer saloon. 
You enter ostensibly to get a glass of beer. What you go for is to 
get the play. By knocking on a door or by some other means you 
obtain access to the manuscript room, and you get a copy for $5. 

The Chadiman. I understand you can buy the plays mentioned by 
writing from Washington. 

Mr. MAWSON. Yes, sir. 

The Chairman. I understand you can write for any play and it is 
sent to you for the advertised price. 

Mr. Mawson. Yes, sir; and frequently under a false title. It is 
difficult for the author and the owner of the property to detect the 
piracy, for the play may go aroimd the coimtry for a number of weeks. 
xhe United States is a pretty big place. When it gets into Montana, 
or Texas, or Maine, it is often months before the piracy is detected, 
and then frequently only by chance. So all this territory is pre- 
empted by the people, taken away from the rightful owner of tibe 
property possibly months before he can reach it. We believe that 
IS a very serious injury to our rights, and it makes it very difficult 
indeed for any copyright act to reach this species of piracy. 

The Chairman. Would not a penalty clause imposing imprison- 
ment reach it? 

Mr. Mawson. If the courts would enforce it. If they would put 
one pirate in jail it would be a great object lesson. 

Representative McGavin. What character of plays are usually 

Mr. Mawson. Everything. The Ldon and the Mouse under the 
title of the Strong and the Weak; Way Down East is called Just 
Plain Folks; and various other plays. They adopt a title analo- 
gous to the real title, and then ty clever presswork and advertis- 
ing the public are told by indirection that this play coming there 
to be shown at 10, 20, and 30 cents will be the same as the play 
that is coming along for which the reputable manager is paying rent 
and paying a royalty, and is charging from 25 cents to $1 admission. 


I wish to say that at the conferences held in New York we did 
endeavor to get such a clause as Mr. Currier referred to, but the con- 
ference woula not consider it. 

Representative Currier. At that conference no Member of Con- 
gress was present? 

Mr. Mawson. No, sir. . Recognizing that fact, we have in some 
of the State laws a provision that about covers that idea, and par- 
ticularly in Illinois, where the State legislature adopted two years 

Representative Sulzer. Have you the provision with you? 

Mr. Mawson. We have the provision wnich has been framed. 

Representative Currier. Mr. Johnson has that. 
• Mr. Mawson. That, gentlemen, is about the status of plav piracy in 
this country. There are ramifications of it, of course. The point is 
that a man can go into a theater and steal your play by having a sten- 
ographic report made, and that is done after tne manager has spent 
aU that money; and, incidentally, if he has spent*$ 10,000 to produce 
the play it costs him $10,000 more to get it off. A pirate never takes 
a failure. He takes your success. No one ever heard of such a thing 
as a failure being pirated. But if you have a success, he will steal it 
A\ithin forty-eight nours of its production. 

The Chairman. You refer now to pirates steaUng a play and pre- 
senting it by actors. 

Mr. Mawson. Yes, sir. 

The Chairman. Not by mechanical devices? 

Mr. Mawson. No, sir. We have not come to that. We, of course, 
have our views upon that point, and we shall, with the permission of 
the committee, state them when the proper time comes. 

That is all I have to say. 


Representative Currier. Mr. Johnson, whom do jrou represent? 

Mr. Johnson. I represent the National Association ot Theatrical 
Managers, which embraces practically all the producing managers of 
America. In order to get before the committee for its use as short a 
statement as possible, the association has prepared, for the benefit of 
the committee, a petition requesting specific legislation, and it also 
files as exhibits certain certificates of individuals as to the actual 
amount involved under a proper copyright. With your periiiission I 
will file it. 

The Chairman. The papers indicated will be put in the record. 

The papers referred to are as follows: 

Thb National AssoaATiON of Theatrical Producing Managers, 

New rorJb, March U, 1908. 
To the CoinoTTEB on Patents, 

United Slates Congress: 
The National Association of Theatrical Producing Managers respectfully petitions 
your committee and the Congress of the United States, and shows: 

That the dramatic author and producer of dramatic works are inadequately pro- 
tected under the existing copyright laws by reason of certain unfair methods to which 
they are now subjected, because of loopholes of escape now afforded unauthorized 
vendors of plays, and under new conditions not covered by the previous copyright 

Your petitioner shows the pending lenslation to be, in effect, a revision and codifi- 
cation ot outstanding copyrignt laws and that by the decision in the case of the White- 


Smith Company t'. Apollo Company, rendered bjr the Supreme Court of the United 
States February 24, 1908, it is intimated that the failure of Congress to act with relation 
to new conditions or an existing state of affairs is to be viewed as a denial of copjrright 
protection in that connection. 

Your petitioner shows tliat there are persons in the United States whose sole occu- 
pation is, in each instance of a successful play, to procure, by medium of stenographic 
notes taken during a performance or in other surreptitious manner, a copy of the tinee 
of a play which is supplied to any person seeking to pirate the play or reproduce same 
through the medium of so-called "talking pictures." 

Your petitioner further shows that there is now being exploited in America a forei^- 
devised machine by which plays are mechanically reproduced through '* talking 
pictures" and without the permission of the authors at so-called picture theaters, 
such reproduction resulting in the utter destruction of the play so reproduced as a 
thing of dramatic value. 

Your petitioner earnestly represents that the author is entitled to full protection in 
his works and that without full protection in the matter of unpublished aramas a vast 
investment in the United States will be jeopardized if not destroyed. 

Your petitioner respectfully shows that there are in America over 1200,000,000 now 
in vested in theatrical enterprises dependent upon adequate copyright protection; 
there are more than 100,000 persons directly dependent upon these enterprises for 
their means of livelihood; that the investments thereunder reach from the Atlantic 
to the Pacific and from the Great Lakes to the Gulf; that there is annually paid in 
salaries by these enterprises about $5,000,000; that there is annually paid by tnem to 
railroads approximately $2,000,000; that there is annually paid to newspapers and in 
printing and advertising in excess of $3,000,000; that there is annually paid to coe- 
tumers, bootmakers, scene builders, and others for the equipment of productions, 
approximately $10,000,000; that more than $1,000,000 per annum is paid for trucking 
and hauling properties and baggage; that sums footing into the millions are paid each 
year to the authors, and that other large amounts are directly or indiretcly paid to 
hotels, shops, and stores and other interests throughout the country. Petitioner 
hereto attaches communications from individuals at interest showing m detail as to 
the investments in theaters and theatrical enterprises directly concerned in the fuU 
protection by copyright of the dramatic author. 

Your petitioner shows that by reason of the fact that dramas are unpublished no 
copy thereof can be secured except surreptitipusly, and by a person seeking to pirate 
or vend same. 

Your petitioner further shows that the mere right to proceed against the reproducing- 
play pirates, whether mechanical or by a company of actors, does not afford fuU pro- 
tection. In the case of a company of Acton the perfonnances are usually given at 
points remote fn)ni the location orheadquarters of the dramatic author or producer, 
and bv irresponsible persons, who jump their companies nightly from town to town, 
if mec'haniailly repn)(luce<l, although a film may be destroyed, the machine is trans- 
ferred to a new inclividual or removed to another town and a new film obuiined. Peti- 
tioner seeks to prevent the unauthorized making of films or vending copies of plays. 

Petitioner respertfully requests that the following provisions as Xxy dramatic work "be 
in effect embodied in tne copyright law of the land. 

That the copyright secured shall include the exclusive right "to publicly perform 
or in any manner represent in whole or in i)art the copyrighted work; to make any 
transcription or other record whatsoever thereof or from which it may be reproducecl, 
perfonned, or represented, if it be a dramatic work." 

That the penalty shall apply to any person who "shall for profit transcribe or pro- 
cure the transcribing in wnole or in part of any work not pnnted or reproducedTfor 
sale by the author or owner thereof or who shall vend any copy, in whole or in part, 
any work not printed or reproduced for sale by the author or owner thereof, or who 
shall willfully and for pnjfit infringe, etc." 

That by reason of the fact it is impossible to ascertain by what medium or what man- 
ner the person vending an unauthorized copy of a play comes into its possession, the 
burden of pn)<)f be put upon the party vending the unauthorized version of a play, 
and the penalty clause be followed by "the burden of proof on any chaise of infringe- 
ment under thfs act shall be upon the party so cliarged to show that such infringement 
was not willful and with knowled/^e." 

As the dramatic value of a play is but short lived, it is essential that any l^al action 
in connection therewith be speedily conclude<l, in order tliat such may not be wholly 

Your petitioner therefore asks that the ri^ht of immediate appeal be granted from 
Any order granting or refusing a temporary injunction. 


Your petitioner further prays that everjr other form and means of protection be 
granted to the author in the protection of his ideas, as is now granted to the inventor 
for the protection of his inventions. 
Respectfully submitted. 

The National Association op Theatrical Producing Managebs, 
HoLLis E. CooLEY, Secretary. 
Hbnrt W. Savage, President. 

Klaw & Erlanger, 
New Amsterdam Theater Building, 
Forty-second Street, near Broadway, 

New York, March 23, 190», 
Mr. H0LLI8 E. Cooley, 

Secretary National Association of Theatrical Producing Managers, 

1410 Times Building, City. 
Dear Sir: In reply to your inquiry of even date will say that the number of com- 
panies booking through our office is approximately 700, and they carry from 10 to 
250 members each, approximately in all about 30,000 persons. There are about 400 
theaters booking through this office, the value of the total investment approximating 
considerably in excess of $100,000,000. In the conduct of these theaters the services 
of about 25,000 persons are required. 
I herewith furnish you with the following tabulations: 

Values of theaters, over $100, 000, 000 

Average annual salaries of employees and performers |1, 750,000 

Average initial investment in the production of 700 plays 1300, 000 

Average number of persons employed in companies and theaters 60, 000 

I can not give you accurate approximate of total railroad fares, but would say that 
same would amount to more than $1,000,000 per annum. The advertising, news- 
papers, printing, posting, and otherwise would be more than double this sum, and 
the d ravage and transfer charges would foot up about a quarter of a million dollars. 
Very truly, yours, 

A. L. Erlanobr. 

Stair & Havlin (Incorporated), 

New York, N. Y., March 24, 1908. 
Mr. HoLLis E. Cooley, 

Secretary National Association Theatrical Producing Managers, 

New York City. 
Dear Sir: Referring to your request as to the number of companies booked through 
our office, would say that same is easily in excess of 500 organizations of from 10 to 75 
members each, making a total of at least 15,000 persons. The number of theaters booked 
through our office is in excess of 250, total investment therein reaching easily the 
sum of $40,000,000. The number of employees easily average 30 to each place of 
amusement, or in round numbers 12,000 persons. You can easily tabulate the above 
to suit your requirements. Total amount of moneys spent for railroad fares by above- 
mentioned traveling companies, newspaper advertising, printing, and posting of dis- 
play matter and pictures, photograpns, scenic equipment, transfer cnarges in the 
various towns in which the companies play, and the salaries, I should say easily 
amount to $2,500,000 more. 
Yours, truly, 

Stair & Havlin (Incorporated). 

Julius Cahn*8 Affiliated Theaters, 

Empire Theater Building, 
New York City, March 2S, 1908, 
Mr. HoLLis E. Cooley, 

Secretary National Association of Producing Managers, 

Times Buudirig, City. 
Dear Sir: In reply to your inquiry of March 23, I beg to say that the theaters 
which I own, lease, control, or book attractions for at the present writing number 
247, and the approximate value of the real estate represented by ibftsfe TATl ^J5vw8&Je«l 


would hardly be covered by a valuation of $18,525,000. These 247 theaters employ, 
approximately, independent of those employed giving the stage performance, 12,350 

The proper advertising of the various attractions playing in these theaters, which 
is principally newspaper advertising, will approximate $2,475,000 annually. 

In this connection 1 wish to call your attention to the fact that this valuation of 
$18,525,000 is more than conservative. At the same time this entire investment, 
being in theater property, would be almost valueless for ai^y other purpose, for you 
know theaters can not be converted into warehouses or stores, the same as other red 
estate property. They can be used as theaters only, and when of no value as a theater 
they are not worth ten cents on the dollar. 

Yours, very truly, Julius Gahn. 

Columbia Amusement Company (Incorporated), 

New Yorl, N. F., March t4, 1908, 


Times Building^ New York City. 
Dear Mr. Cooley: In compliance with your request, I herewith inclose a compre- 
hensive statement of amount of moneys invested m theater properties through tiie 
United States and Canada, the aggregate cost of our productions, amount paid for 
Milaries, and other important incidentals in connection with our various enterprises, 

Valuation of 34 theaters $9, 000, 000 

Number of persons employed 2, 620 

Cost of productions yearly $150, 000 

Salaries per year $2, 448, 000 

Railroad fares $150, 000 

Printing $150, 000 

Newspaper advertising $166, 000 

Transfer bills $76,000 

Yours, very truly, 

Columbia Amusement Co., 
Samuel A. Scribneb, SecrHary. 

Empire Circuit Attractions, 

Knickerbocker Theater Building, 

New York, March 25, 1908. 
Mr. HoLLis E. CooLEY, New York, N. Y. 

Dear Sir: As requested by you, I am herewith handing you a statement of the 
gross investment in theatrical properties in connection with our enterprises, together 
with the tabulated statement of annual expenditures and persons employed. The 
statement involves the value of the theaters both owned and controlled by us, and are 
as follows: 

43 theaters $12,000,000 

Annual salaries, performers and theater employees 3, 000, 000 

Annual cost of productions (over) 200, 000 

Annual railroad fares 185, 000 

Annual printing and advertising 325, 000 

Annual transfer and hauling charges 90, 000 

The foregoing statement is, as you understand, not computed to a penny from our 
books, but is an approximate statement , and is reasonably accurate. If I can fumiflh 
you anv further information in the premises, please advise me. 
Yours, sincerely, 

Harry Martbll. 

Charles Frohman, Empire Theater, 

New York, March 25, 1908. 

Secretary the National Aisociation of Producing Managers, 

1410-Ull Tim€S Building, City. 
Dear Sir: As requested by you, I am herewith handing you a statement of the 
gross investment in theatrical properties in connection with our enterprises, together 
with a tabulated statement of annual expenditures and persons employed. The 


statement involves the value of the theaters both owned and controlled by us, and 
are as follows: 

Theater $6, 000, 000 

Annual salaries, performers and theater employees 3, 750, 000 

Annual cost of productions (over) 400, 000 

Annual railroad fares 750, 000 

Annual printing and advertising 500, 000 

Annual transfer and hauling charges 75, 000 

The foregoing statement is, as you understand, not computed to a penny from our 
books, but Ib an approximate statement, and is reasonably accurate, if I can furnish 
you with any further information in the premises, please advise me. 
Yours, sincerely, 

Alf Hayman. 

LiTT & Dingwall, Broadway Theater, 

New York, March 2S, 1908. 


Secretary National Association of Theatrical ProduHng Managers, 

1410 Times Building, City. 

Dear Sir: We have invested in theaters which we own outright in Chicago, St. 
Paul, and Minneapolis about $1,800,000. We operate under leases in New York, 
Milwaukee, and Minneapolis other theaters valued at $1,600,000. We expend approx- 
imately in salaries to employees in these different theaters between $7,000 and $B.000 
weekly. In theatrical companies en tour our salary list aggregates $200,000 annually. 

We expend for printing, railroad fares, etc. , approximately alx>ut $100,000 per annum, 
and for advertismg in the newspapers in the different cities of the country, for our 
traveling oreanizations and for our theaters, about $125,000. We employ in these 
theaters and traveling companies upward of 1,000 people. 

Having built up tms business to its present proportions by many years of close 
application, we think we are entitled to thorough and complete protection in the 
shape of an adequate copyright bill. 

Yours, truly, Lrrr & Dingwall. 

Sam S. & Lee Shubert (Incorporated), 

Broadway and Thirty-ninth Street, 

New York, March 24, 1908. 
Mr. Hollis E. Cooley, 

Secretary National AssocicUion of Theatrical Producing Managers, 

New York City. 
Dear Sir: In reply to your inquiry of the 23d instant will say it is difficult to give 
the exact amount involved under your questions. We furnish you the following 
tabulations of value which we consider conservative approximates: 

All theaters owned and controlled, $20,000,000; annual investments and expendi- 
tures in production, $525,000; the number of persons employed in productions and 
theaters, 4,000. 

We can give you a better idea of the average salaries paid by quoting the weekly 
salaries of some of our companies, for example: 

The Julia Marlowe Company will approximate about $5,300 per week; Happy- 
land about $3,600 per week; Lew Fields about $4,800, and the Gay White Way about 
$3,857 per week. 

As to the royalties paid authors, the usual payments are $500 to $1 ,000 ; as, for example, 
in the Marlowe Company the average weekly royalty is $500 and the Happyland roy- 
alties is about the same. In the Lew Fields royalties same reaches $1,000 per 
week, and in the Gay White Way the royalties approximate $800 weekly. 

The weekly railroading ranges from $500 to $1,000, and the weekly advertising from 
$300 to $500 per week per company. 

The average payment to theater owners from these companies will approximate 
$3,000 per week. The average cartage and transfer about $300 per week. The original 
cost of these productions ranges from $18,000 for Happyland Company, $22,000 for 
the Lew Fields Company, $26,000 for Gay WTiite Way Company, to $100,000 for 
the Julja Marlowe Cfompany, which requires four cars to cany the equipment for 
the productions. 
Trusting this furnishes you the information you desire, 
Yours, very truly, 

Sam S. & Lee Shubert (Incorporated), and 
Shubert Theatrical, 
By Jacobs, Secretar)) aud Treosuxer* 


Cha8. E. Blaney Amusement Company (Incorporated), 

Suite 1 and 2, Broadway Theater Building, 

New York City, March 24. 1908. 


Secretary T. A, 0. P. M. 0. A., New York City. 
My Dear Mr. Cooley: Below I give you an idea of the magnitude of the Chaa. E. 
Blaney Amusement Company, which controls fourteen traveling oi^ganizations and 
eight theaters: 

The value of ground and theaters |2, 050, 000 

Number of people employed on the road and in the theaters 800 

Salaries, approximately, season 1906-7 $500, 000 

Amount paid to railroad companies, 1906-7 $83, 000 

Amount paid to lithograph companies, 1906-7 $92, 000 

Amount paid transfer companies, 1906-7 $21, 000 

Amount jmid to newspapers, 1906-7 $34, 000 

Cost of productions, 1906-7 $112, 000 

Yours, truly, 

Chas. E. Blaney Amusement Co., 
Chas. E. Blaney, President. 

HuRTiQ & Sbamon (Incorporated), 

147 West Forty-second Street, 

New York, March U, 1908. 
Mr. Hollis E. Cooley, 

Secretary National ABBOciation of Theatrical Producing Managers, 

1410 Times BuiUiing, City: 
Dear Sir: In reply to your inquiry of even date, will say that we own and control 
ten theaters of the approximate value of $2,500,000, and that in the operation of these 
theaters we require the servicers of something over 300 persons. 

We also own ten traveling attractions, employing in the aggregate about 400 people, 
or a total of 700 or more people dependent upon our enterprises. Our salaries ana 
expenditures in the way of railroau fares, newspapers, other advertising, royalites, 
transfer charges, and the like, approximate about the same of the other attractions the 
same cliaracter as our own, and , all in all, considerably exceed $1,000,000 per year. 
If there is any other information we can afford you, kindly inform us. 
Yours, very truly 

HuRTio & Seamon (Incorporated), 
Jules Hurtig, President. 

Klaw & Erlanoer, New Amsterdam Theater Building, 

Forty-Second Street, near Broadway, 

New York, March 2S, 1908. 
Mr. Hollis E. Cooley, 

Secretary National Association of Theatrical Producing Managers. 

1410 Times- Building, City. 
Dear Sir: In reply to your favor of even date I quote you the following figures of 
receipts in seven years on six successful plays: 

Paid by the producing manager to theater owners as their share of 

receipts $2,968,964.15 

Salaries, over 3, 586, 454. 93 

Railroads, for tranHiK)rtati<m • 388, 545. 10 

Printing and advertising 333, 806. 23 

Drayage and transfer 90, 713. 89 

Productions, Hcener>', and costumes 1, 051, 935. 89 

Authors' royalties 621,964.42 

Gross receipts of these six companies in seven years 10, 806, 406. 32 

You must bear in mind, however, that not all productions are successful. Often 
a producer puts out a play costing from $10,000 to $100,000, only to find that it does 
not meet with public favor. In such a case the producer loses his investment and 


the author all return upon his work and labor. In other words, the producer invests 
his monev and the author his play, the returns being contingent upon whether or 
not the play is a success. 

Very sincerely, yours, A. L. Erlanoer. 

A. H. Woods Productions, 
Knickerbocker Theater Bldg., 1402 Broadway, 

New York, March t4, 1908. 


Secretary National ABSociation Theatrical Produjciug ManaqerSf 

New York City. 
Dear Mr. Coolet: I herein inclose you the statistics of the 13 shows under my 
management for the season of 1907-8, up to and including Saturday, March 21. The 
items herein enumerated are the actual expenses that have been paid out by the A. H. 
Woods Productions Company. 

Yours, very truly, A. H. Woods Productions Co., 

A. H. Woods, President and Treasurer. 

This season up to and including March 21 ^ 1908. 

Railroad $73,627.68 

Excess baggage 3,216.88 

Salaries of 13 companies, each company having from 20 to 32 people 368, 966. 00 

Baggage and scenery hauling 18, 522. 60 

Extra advertising 61 , 205. 70 

Extra stage help 6,315.80 

Extra supers 1, 480. 50 

Carpenters' accounts 988. 70 

Properties -3, 682. 45 

Telegrams and postage 631. 85 

Express and freight bills 4, 247. 60 

Light and calcium extra help 1, 926. 80 

Prmting bills 80, 731. 31 

Cost of productions, including building of same, together with electric 

equipments and props necessary prior to opening 46, 788. 52 


**Oeorge Washington^ jr.** Company. 

To theater managers and proprietors for their share of receipts, $120,000 for 

2 years $240, 000 

To company, actors, etc., for salaries, etc., $2,400 for 35 weeks, $84,000 fur 

2 years 168, 000 

To railroads, $400 for 35 weeks, $14,000 for 2 years 28, 000 

To printers, advertisers, etc., estimated 100,000 

To scene builders, painters, etc 35, 000 

To author, account of royalties, $300,000 at 5 per cent, $15,000 for 2 years. . 30, 000 

** Little Johnny Jones** Company. 

To theater managers and proprietors, for their share of receipts, 4 years at 

$65,000 260, 000 

To companies, actors, etc., for salaries, etc., $2,900 per week for 35 weeks, 

$101,500 for 4 yeare 406,000 

To railroads, $750 per week for 35 weeks, $26,250 for 4 years. 105, 000 

To printers, advertisers, etc., estimated 150, 000 

To transfer men, etc., $350 per week for 35 weeks, $12,250 for 4 years 49, 000 

To scene builders, painters, etc 20, 000 

To author, account of royalties, $160,000 per year at 5 per cent, $8,000 for 

4 years 32,000 


** Forty-Five M%nuie$Jr(mk Broadway" Company. 

To theater managers and proprietors, for their share ol receipts, $60,000 for 3 

years, $180,000 and $60,000 $240,000 

To company, actors, etc., for salaries, etc., $2,500 for 35 weeks, $87,500 for 3 

years, $262,500 and $87,500 350,000 

To railroads, $500 for 35 weeks, $17,500 for 3 years, $52,500 and $17,500. ..... . 70, 000 

To printers, advertisers, etc., $750 for 35 weeks, $26,250 for 3 years, $78,750 

and $26,250 106,000 

To scene builders, painters, etc 40, 080 

To authors, account of royallies, $194,000 at 5 per cent, $9,700 for 3 years, 

$29,100 and $9,700 38,800 

Mr. Johnson. I wish to sav in the beginning that the National 
Association of Theatrical Producing Managers and its allied interests 
has been but recently formed. We only took under advisement the 
matter of the copyright bill just a short time ago — a week or so ago — 
and as a result of that examination we have made these specific 
reouests for legislation. 

To begin with, our organization directly and indirectly represents 
in excess of $200,000,000 in actual investment in the United States 
of America. Our theatrical investments, so far as the theaters are 
concerned, range from Maine to CaHforhia and from the Great Lakes 
to the Gulf. Through the medium of amusement enterprises — that 
is to say, the comnanies and the theaters — over 100,000 people are 
employed. More man $5,000,000 a nually is paid in salaries. More 
than $2,000,000 annually is paid in railroad fares. More than 
$3,000,000 annually is paid to newspapers and for other advertising 
mediums. Approximately a half milnon dollars a year is paid in 
transfer fees — that is to say, for hauling and trucking. A large 
amount is paid authors — up into the millions — in royalties; and in 
addition to that, of course, there are the incidental sums to hotels, 
shopkeepers, and the like. The actual amount involved is perfectly 

I wish to illustrate how a play is produced. The author furnishes 
the manuscript, and the producer first the necessary funds to put the 
play on, the time, the worry, and, as a matter of fact, the producer 
devises the costumes and the scenery, and he attends to all the inci- 
dental matters. Of course the author is present at the performance 
and joins in and aids. So before a production anywhere from ten to 
possibly seventy-five or a hundred thousand dollars have been actu- 
ally invested by the producer. If the play meets with public ap- 
Sroval the author gets adequate returns for his work and the pro- 
ucer gets his money back with reasonable profit. • If the play does 
not meet with public approval the author loses his work, and the pro- 
ducer loses the money tnat he has invested in the production as well 
as his work. 

Upon an examination we find that no bill before this committee 
embraces certain features that we <leem absolutely essential to the 
future successful conduct of the producing business. 

Representative Citrrier. May I interrupt you for just a question? 

Mr. Johnson. Yes, sir. 

Representative Currier. My mail is full of letters this morning 
from dramatic authors urg:ing that it is our imperative duty to pass 
the Kittredge-Barchfeld bill. Except for a slight difference in the 
penalty clause, is there any difference between tbe bill introduced by 
Senator Smoot and Mr. Currier and the Barchfeld bill I 


Mr. Johnson. There is just one difference so far as the Barchfeld 
bill is concerned, and that is that provision has been made or an 
amendment has been offered in the Barchfeld bill which covers the 

E resent so-called talking pictures. That is not embraced in any other 

Representative Currier. It is not in the Kittredge bill? 

Mr. Johnson. No, sir. 

Representative Currier. So that practically the authors who are 
writing here urging the passage of the Kittredge-Barchfeld bill as 
taking care of their interests are laboring under a serious misappre- 

Mr. Johnson. Except those authors who have musical composi- 

Representative Currier. I am speaking of dramatic authors. All 
the letters I have received this morning are from them. 

Mr. Johnson. Frankly, from the dramatic proposition the pen- 
alty clause is the only difference between the Smoot bill and the 
Kittredge bill. 

Representative Currier. And the Kittredge bill, from their point 
of vieWj'if they understood the situation, is utterly inadequate, is 

Mr. Johnson. Frankly, in our estimation the Kittredge bill is 
very inadequate. 

The Chairman. Evidently all these letters come from the same 
source, because my mail is filled with them every day, and they are 
word for word the same. The only difference is in the date. 

Representative McGavin. They are asking protection from play 
piracy, which that bill does not afford at all. 

The Chairman. No. 

Mr. Johnson. I am speaking from the producer's point of view 
and not from any other. 

I want to say, on the other point, that we consider the amendment 
offered by Mr. Barchfeld to be of great value to the producers. But 
I will take that up in a short time. 

The Chairman. That will come under the musical provision of the 
bill, I suppose. 

Mr. Johnson. If you will pardon me, I think there is a decided 
difference in the conditions. 

The Chairman. It means the reproduction by mechanical devices, 
through the manufacture of a film, the play being reproduced in that 

Mr. Johnson. In the first place^ you must bear in mind that in a 
straight dramatic play which is bemg produced upon the stage in the 
ordinarv manner tnere is never published and no man can get 

The Chairman. Let me say tnat as one member of the committee 
I should very much prefer to have that brought up at the same time we 
take up the reproduction of musical matters, on the same day. If 
you go into that subject, I am afraid it will cause a great deal of dis- 

Mr. Johnson. I do not want to transgress the committee's notion 
of the order of procedure. But I should like to say a word as to the 
absolute necessity of amendments in order to prevent the initial 
play piracy. There has been described the manner in which a play 
is stolen. The producer has tried every possible means to ascett^\Si. 


just exactly how those copies are obtained. We have had the the- 
aters watched to see if we could catch the man taking the notes, the 
stenographer. We have never been able to do anything at all in 
that line. We know the man; that is, we have no dilliculty in laying 
our finger at any time upon this man who is the actual pirate in the 
premises, but we are powerless, under existing law, except tl)rouo:h 
the medium of an injunction as to an individual play, to coriect the 
abuse. The remedy by injunction is wholly inadequate. 

Representative Currier. May I ask a question? 

Mr. Johnson. Certainly. 

Representative Currier. The people whom you represent do not 
publish these plays. 

Mr. Johnson. No; they do not. 

Representative Currier. They do not multiply copies of them? 

Mr. Johnson. No, sir. 

The Chairman. They do not sell them? 

Mr. Johnson. No, sir 

Representative Currier. They do not receive royalties from the 
copies, but the royalty comes from the production of the unpubliiihed 

Mr. Johnson. Except in the case of an opera. The book of the 
opera may be sold witn the production. 

Representative Currier. I am speaking of dramatic composi- 

Mr. Johnson. That is sometimes done abroad, but I have never 
known of an instance of it in America. I think the dramatists desire 
to reserve the rieht to publish, but from the producer's end of it we 
know nothing about the publishing of any manuscript, nor am I 
now familiar with a single instance of it. 

The Chairman. You recognize the fact, however, that if it were 

f)ublished it would occupy an entirely diflferent position as far as the 
aw is concerned than if not published. 

Mr. Johnson. Yes, sir. Tlie very provision we are asking for now 
is to prevent anybody from transcribing that plajr or vending that 
play. Those provisions would have to be made with regard to the 
unpublished play. In other words, where a play is simply produced, 
is not published, there is a single manuscript in the possession of the 
author. Any person who gets the book of that play can get it in no other 
way than surreptitiously and can get it for no other purpose than to sell 
it or supply it to somebody who proposes to pirate the plav. Under the 
existing law we have a simple right of process against the pirate who 
offers the play; that is to say, the company that gives a public per- 
formance of the play. In a great manv instances they change the 
name when they produce it. Of course the East as a rule and Chicago 
are the headquarters of the producer and most of the authors. The 
plays are pirated from one end of the country to the other, and usually 
at places remote from the headquarters of the authors and the pro- 
ducers, frequently under another name, and it may be weeks before 
the author or the producer finds out about tliis particular instance of 

Then in addition they are usually produced by what we term one- 
night stand companies, where they jump from town to town. I had 
an instance the other day. Several comjilaints were made in regard 
to plays by Mr. Belasco. But by the time we got to the town where 


they had played they had been away a week. It is almost impossible 
to ascertain where they are going to be a week ahead. 

In addition to that, we have to prove the willful and knowing, and 
it is just simply 

The Chairman. That would not seem to be a very great hardship 
with a pirated play. 

Mr. Johnson. It is almost impossible unless we go ahead to a 
town and just before they ring up the curtain we give notice that 
''This play is the property or Mr. So-and-so, and you are hereby 
notified," and so forth. Unless that notice is given the court will 
not hold the performers. Usually a pirating company carries two 
plays, one for piracy purposes and the other to give as a substitute 
whenever notice is given. • 

Representative McGavin. You heard the statement of the gentle- 
man who preceded you about Chicago being the center of piracy. 
Now you claim it is done on the one-night stands. 

Mr. Johnson. You misunderstand the proposition. The chief of- 
fender, the president, by the way, of a big litnographic concern, is in 

The Chairman, The people know it has been stolen when they 
buy the play from him. 

Mr. Johnson. Yes, sir; and this man has particular means to steal 
the play. We go there, and in some instances get an injunction as to 
the particular play. All he does is to turn what manuscript he may 
have held back or kept out over to somebody in San Francisco or 
Pittsburg; and, by the way, there are three. Pittsburg and San 
Francisco are also headquarters. 

The Chairman. If we provided a penalty which would send those 
people to jail, do you not think it would stop it? 

Mr. Johnson. This is the situation 

The Chairman. Do you want to have the right to send to jail the 
man who makes the copy? 

Mr. Johnson. Yes, sir. We want both, as a matter of fact, but 
we can reach the fountain source of piracy by stopping the man who 
vends the play. If we stop that, then the people who would commit 
the piracy have not the material with which to commit it, and for 
that reason we are exceedingly anxious to get a provision in this bill 
to prevent the transcribing of an unpublished play in the first place, 
ana in the second place to make it a penalty to vend a copy of the 
play. That is embraced in the bill. 

The Chairman. An unpublished play? 

Mr. Johnson. Yes, sir; because we realize that we can not properly 
pass a law that a man can not transcribe any play reproduced for 
sale. If it is sold, then some other person can without any trairs- 
gression copy it. For instance, I could borrow the book from you 
and copy it. That would not constitute any oflFense. It must apply 
merely in that respect to an unpublished play. We desire the otner 
penalty clause to remain in full force as it now stands. As I under- 
stand, there is no serious objection to retaining the imprisonment 
clause in the bill. 

The Chairman. I will say, Mr. Johnson, frankly, as far as I am 
concerned I have no objection. 

Representative Currier. So far as I am concerned, I ain entirely 
satisfied with the penalty clause found in the Kittred^<^ V>?^^^^^^^ 
is fine or imprisonment or both, ia \3aft diaex^VAOvi <A "Oo^^ ^<^n^^»- 

89207^08 3 


Representative Sulzer. So far as I am concerned, I would mako 
the penalty 'fit the crime. 

Representative Leg are. Why do you object to the term ** will- 
fully and knowingly?" 

Mr. Johnson. Let the burden of proof be upon the party charged 
with the infringement to show that he did not willfully and knowingly 
infringe. This is the situation 

Representative Legare. Put the burden of proof upon the defend- 

Mr. Johnson. Because he alone has that information under his 

Representative Legare. You are wiUing that the words shall 
remam in, but that the' burden of proof shall be shifted to the de- 

Mr. Johnson. Yes, sir; and for this reason: Take Mr. Klein's 
play, the Lion and the Mouse. The man who wishes to reproduce 
that play goes to this man in Chicago and says, ''I want a copy of 
the laon and the Mouse." All that it is necessary to do imder the 

mgiy remam m, an mat tne aerenciant nas to say is, i ao not rec- 
ollect from whom I bought that play. Somebody brought it in to 
me, and of course I can not keep up with the hundreds or plays that 
come in every day. I do not recollect where I got it. I simply 
put it back here, and somebody wanted it and I sold it." As a mat- 
ter of fact, of course that play cannot be procured by any person 
except for the specific purpose, or would not be procured, except for 
the specific purpose of piracy, because it is a troublesome proposi- 
tion to secure a copy of the play. It means that they must have a 
stenographer accurate enougn to take down the lines. They must 
have some one sufficiently familiar with theatrical productions to 
note the scenic effect and the costume effect and to secure a generid 
description of the play. It is put out in such form that any com- 
pany or any persons who desire to put it on by any organization can 
do it. No person can copy it or would ever think m a thousand 
years of copying or getting a copy of the play except for the specific 

Surpose of turnmg it over to some other person who expects to pro- 
uce the play and to produce it without paying any royalty to the 
author. With the words '* willfully and knowingly" in, we can not 
do anything imless we can catch the manager who pirates the play, 
bring him back to Chicago, and force him in Chicago to testify as 
to the purchase from this particular man. To begin with, we have 
no authority under the law to bring a witness from one State to 
another in such a prosecution, and we could not get sufficient evi- 
dence to maintain the prosecution. 

Representative McGavin. Whether "willfully and knowingly" are 
in the bill or not, you would have to prove the intent. 

Mr. Johnson. If he sells for profit ? That is the proposition. If he 
takes a copyrighted play, unpublished, and vends that play 

Representative McGavin. That would be a circumstance. 

Mr. Johnson. Then put the burden on him to show tiiat he did 
not willfully and knowingly steal a copyrijg;hted play. 

Representative Leake. Under the willnilly and knowingly clause 
you must also prove that when he purchased it he knew the play was 


Way Down East, pirated under some other name. That is an ad- 
ditional difficulty. 

Mr. Johnson. It makes it almost impossible to secure sufficient 
evidence to obtain a conviction. 

Representative Currier. You must realize the difficulties the 
committee would have when this matter shall come up in the House 
with a provision in the bill which shifted the burden of proof. 

Mr. Johnson. I would suggest that the clause go m leaving out 
''willfully and knowingly." 

Representative Currier. Where is that? 

Mr. Johnson. Section 31. 

Representative Currier. You would suggest that we strike out 
the words ''knowingly and willfully" in line 21? 

Mr. Johnson. Yes, sir. 

"Representative Currier. I do not see that that alters it very 

Representative Leake. Would not the striking out of the word 
"knowingly" and leave it "willfully" accomplish your purpose? 

Representative Currier. You could not do it knowingly without 
doing it wilfully. 

Representative Leake. "Knowingly" is the term under which 
they say, in order to bring about a conviction, they must prove that 
the defendant knew the play was a copy of a play of another name. 

Representative Currier. In order to get a conviction for a willful 
violation of this act you would have to show that. 

Representative McGavin. You would have to show the intent. 

Representative Law. Do you think you could get a conviction if 
you struck out those words ? 

Mr. Johnson. I should like to have the section read in this manner: 

That any person who shall for profit transcribe or procure the transcribing in whole 
or in part of any work not printed or reproduced for sale by the author or owner thereof 
or who shall vend any copy, in whole of in part, of any work not printed or reproduced 
for sale by the author or owner thereof, or who shall willfully, and for profit infringe, etc. 

Then follow with the section, changing the section in no particular 
except the penalty. Then I would suggest the shifting of the burden. 

Representative Law. Striking out those words would not shift it. 
You would have to prove it. 

Mr. Johnson. All we would have to prove was that the person 
bought a pirated play, which had been purchased from this particular 

Representative McGavin. You would have to prove that he did 
so willfully and knowingly. There is no crime under the law without 

Mr. Johnson. That is very true 

Representative Law. The only way would be to provide specific- 
ally tnat the burden of showing that it was not knowingly and will- 
fully done should be upon the defendant. 

Representative McGavin. That would be unconstitutional. 

Mr. Johnson. I disagree with you on that. 

The Chairman. I should like to say that before adjournment this 
morning we would like to hear from Mr. Clark. 

Mr. Johnson. I shall be very glad to yield. I thank you, Mr. 
Chairman. Other than the talking pictures^ I think that is all. 



The Chairman. Mr. Clarke, whom do you represent? 

Mr. Clarke. I am vice-president of the American Dramatists Club. 

I wish to ask, sir, if the arrangement for the division of time which 
you have made as to discussing various points covers a feature to 
which I wish to call attention. In the first section of the Barchfeld 

The Chairman. We do not want to take up the Barchfeld bill now. 

Mr. Clarke. I know, but it says: 

To perform or represent the copyrighted work publicly if it be a drama. 

Representative Currier. That is in every bill in exactly the same 

Mr. Clarke. We wish to have something to say on that section* at 
the proper time. 

The Chairman. The proper time will be when we take up the 
question of the reproduction by mechanical devices. The principle 
you wish to speak on here is also involved in that principle. So we 
would rather you would take it up later. 

Mr. Clarke. You wish to reserve that? 

The Chairman. Yes, to a later time. 

Mr. Clarke. Mr. Chairman and gentlemen, I should like to say to 
the combined committees that the dramatists feel under a good deal 
of obligation to both the committees for the way in which they have 
dealt with the greater part of the matters pertaining to the dramatic 
copyright. Although what I have to say for just this minute is not 
in the way of fault-finding, I presume the necessity will not be un- 
gratifying. We are particularly glad of that section with relation to 
the nonimpairment of the rights at common law. We are very much 
pleased indeed with the section abolishing the need to print for the 
purpose of the copy. As I will explain a little later on, that section 
as it stood in the old law was very embarrassing to the author, and 
we thank both committees for changing it as they have done. We 
are also thankful for the extension of the life of the copyright granted 
by section 24. We think it is far more just than the ola law. I refer 
to the extension of the period of the copyright and the provisions for 
repetition. I presume they are the same in all the bills, are they not? 

The Chairman. I believe they are virtually the same. 

Mr. Clarke. I wish to call attention to section 28, division 4: 

In the caae of a dramatic or dramatico-muRical or a choral or orchestral composition, 
$100 for the first and $60 for eveiy subsequent infringing performance; in the case of 
other musical compositions, $10 for every infringing performance. 

That is the para^aph in the Smoot bill. We have to say on that 
that this penalty is simply a reproduction of the law of 1856. At 
that time the subjection to a claim for damages for $100 for the first 
performance and $50 afterwards was a very fair and adequate claim 
to make. That is to say, it was as would be proper under such cir- 
cumstances. It was a little in excess of what the author would have 
:ot at the time as royalty or reward for his work. But that time 
as gone by. In the intervening fifty years the emoluments have 
changed to a remarkable extent, so that with a successful play those 
penalties are really what you might call inadeauate. In other words 
taking the most successful plays^ a pirate could afford to pay $50 a 


performance, and he would still be a lon^ ways ahead of what he 
would have to pay if he dealt with the author. 

The Chairman. Let me ask you a question. Have vou in mind 
now a single case of that kind, where a pirate took a play and paid 
a fine rather than pay the author the royalty stipulated by him? 

Mr. Clarke. I have not, and naturally I was only supposing a case. 

Mr. George H. Broadhurst. I am the author of the Man of the 
Hour, and it would be very much cheaper for a man to pirate my 
play under these terms than to pay me my royalty, specifically 

Representative Currier. With an adequate penal remedy you 
would never resort to the civil remedy? 

Representative Leake. You would prefer to exercise the right to 
send a man to jail? 

Mr. Broadhurst. Yes, sir. 

Representative Currier. If that is taken care of you would not 
care anything about that section. You would never bring a civil suit 
if you had an adequate criminal provision? 

Mr. Broadhurst. No, I would not. 

Representative Currier. We do not need to take much time on 

Mr. Clarke. I wish to say that in this particular ,there has been 
nothing pushing the matter toward the present day at all. It is an 
antiquated limitation, and it ou^ht, in common justice, so long as it 
is retained at all, to be advanced in some particular. I do not think 
we ask anything beyond the $5,000 Umitation for a single offense, but 
we think the $100 and the $50 should be at least doubled. 

The Chairman. That would be rather excessive for a choral com- 

Mr. Clarke. Perhaps for a choral composition, but for a dramatic 
composition it would not be. I hope it is understood that we wish 
those penalties to be doubled, but not the maximum, to leave the 
maximum as it is. 
- The Chairman. Your request will be considered. 

Mr. Clarke. In the matter which appears in the Smoot bill as sec- 
tion 31 and in the Barchfeld bill as section 30, which I think you have 
referred to before as the penaltv clause, I wish to say that the authors 
are verv strongly in favor of the wording as it appears in the Barch- 
feld bill. If I may be allowed a few minutes, it would be very perti- 
nent to give a very brief history of the inclusion of the imprisonment 
clause in the copyright law. 

The Chairman. So far as that is concerned, I do not think you 
had better take up that, because I do not think there will be any 
difficulty about it. 

Representative Leake. Do you know who drew the Barchfeld 
bill? Did the authors draw it? 

Mr. Clarke. No. 

Representative Leake. Do you know who did? 

Mr. CLARKE. Probably Mr. Barchfeld. We are not in the know on 

Representative Sulzer. Mr. Barchfeld is sitting right there. As 
I understand, you prefer section 30 of the Barchfeld bill to section 
31 of the Smoot bill. 

Mr. Clarke. Yes, sir. If both of the committees are one 


Representative Currier. Let me say that in the House Com- 
mittee on Patents at the last session of Congress that was the most 
drastic provision that the committee would report out. It does 
not represent the views of many members of the committee, but we 
had to make a concession in order to report a bill. 

Representative Sulzer. You need not pay very much attention to 
that, Mr. Clarke. 

Mr. Clarke. I hope the committee is of an open mind. 

Representative Currier. You need not bother about that. 

Mr. Clarke. It is with that view that I want to present a few facts 
about the imprisonment clause. If the committee are of a mind to 
adopt the Barchfeld language, we are not particular how you arrive 
at it. 

Representative Currier. The committee can not commit itself to 
any proposition, but you need not go into the history of this. 

The Chairman. We have thrashed it out time ana again. 

Mr. Clarke. I wish to make this statement: The imprisonment 
clause which was imbedded in section 4966 of the Revised Statutes 

Representative Currier. That was the first time the penal feature 
ever appeared in the copyright law. 

Mr. Clarke. Yes, sir. 

Representative Currier. And there is no penal feature in the 
patent or trade-mark laws. 

Mr. Clarke. The insertion of that in the Revised Statutes was not 
arrived at in any snap-judgment manner. It was fully debated in 
Congress, and it was thrashed up and down under the condition which 
existed then, and which exists m intensified form now. The impris- 
onment clause is absolutely necessary for the protection of copy- 
righted plays. 

1 wish to add to that, sir, the fact that since the passage of the copy- 
right law, it has been embedded in the statutes or 14 or the principal 
States of this Union. In 1899 it was placed upon the statute books of 
the State of New York, and stands tnere witn the signature of Theo- 
dore Roosevelt, governor of that State. 

Representative Currier. That is so with the trade-mark laws of 
the various States. It is not so with the trade-mark laws of the 
United States. 

The Chairman. Or the patent law either. 

Mr. Clarke. The work which the dramatists sought to have pro- 
tected under this clause is a very transitory thing in the way of secur- 
ing the emoluments coming to a dramatist. As has been said here 
before, it is only the successful play that is stolen. The successful 
play comes perhaps once in the lifetime of an author. If it comes 
more than that, he is exceptionally lucky or exceptionally great, and 
it appeals no doubt to the sense or justice of Congress to give lum the 
protection which he should get during that brief time. It is during 
the first two or tliree years of the life of a successful play that the 
pirate exists and makes his gains, and it is during those two or three 
years that the author wants to be protected and protected properlv. 
These fly-by-night companies, these people without assets, with noth- 
ing but the clothes on their backs, who flv from one place to the other, 
by their inadequate performances not only rob the author of royalties, 
but they tend to spoil the market when the genuine author's produc- 
tion comes along. 


As has been stated, the imprisonment feature came into the copy- 
right law through the dramatists. It pleased the conferees, ana it 
has pleased some of the committees on both sides to expend that into 
a general proposition. All we ask is that inasmuch as this, after due 
deliberation; was placed upon the statute books and exists to-day as 
the law of the land, that you will not lightly interfere w4th it. 

Representative Currier. I do not think the amendment to 4966 
was placed on the statute books after due deliberation. 

Mr. Clarke. I do not hear what you say. 

Representative Currier. The amendment by which musical com- 
positions were added to 4966 

Mr. Clarke. What year was that? 

Representative Currier. My understanding has always been that 
they intended to confine that to dramatical musical compositions. 

Mr. Clarke. At the time there was no question about the phono- 

Representative Currier. I knew what the man who drew the bill 
and who reported it to the House and got it through said about it. 

Mr. Clarke. I wish strongly to support the view put forward by the 
dramatic authoi*s — the view and phraseology put forward by Mr. 
Johnson, amendatory of that clause against those who transcribe in 
an unauthorized way an unpublished play and who vend the same, 
and we ask that the highest penalties be applied to those persons 

Representative Currier. The committee is disposed^ I am sure, to 
give you adequate reUef , but the best copyright lawyers m this countiy 
say to me, ''For Heaven's sake, do not make your penal provisions 
too drastic. If you do, you never can get a conviction.'' 

Mr. Clarke. Of course that is true. In the Wiimewood case Judge 
Grosscup hesitated to impose the penalty on the ^ound that in get- 
ing the copyright they had deposited two typewntten copies, ana he 
claimed that was doubtful. 

Representative Currier. Do you think you would ever get a con- 
viction under 4966? 

Mr. Clarke. No. We are quite satisfied with the protection as 
found in the Barchfeld bill. Have you any information about the 
piracy case of Way Down East? 

The Chairman. Not as a committee; but I have heard of it indi- 
vidually. However, I do not want to go into that question now. 

Mr. Clarke. We only ask that our nghts as they exist be not im- 

At 11 o'clock and 45 minutes a. m. the committee took a recess 
until 8 o'clock p. m. 

evening session. 

The committee reassembled at the expiration of recess. 
The Chairman. I would Uke to ask ii the dramatic authors have 
said all they desire to say upon this question as affecting their interests? 


The Chairman. I want to say again to Mr. Clarke and the gentle- 
men present what I said this morning, I do not want to Umit anyone 


as to time, unless it becomes absolutely necessary. Therefore, I ask 
everyone to make his statement just as brief as possible. 

Mr. Clarke. Mr. Chairman and gentlemen,* since this morning, in 
the direction of the pleadings made by our dramatists upon the 
penaHzing section, we nave drawn up a tentative section in tne name 
of the American Dramatists* Club m the form of section 31 of the 
Smoot bill, and I wish to submit that so that it may, if you please, 
go upon the record. 

The Chairman. If there is no objection, that will be put in the 

Mr. Clarke. It is just one page of manuscript. Do you care to 
have it read? 

Representative Currier. How does it differ from the suggestions 
made by Mr. Johnson this morning? 

Mr. Clarke. It simply absorbs nis suggestions. 

Representative Currier. Nothing further? 

Mr. Clarke. Nothing further — that is, it substitutes the penal 
provision of the other bill for it, but we submit it for your considera- 
tion. If you care to have it read, it is only one page, and I will read 
it, so that you may know just what is going in the record. 

The Chairman. I^et it go into the record. 

Representative Currier. If it simply incorporates Mr. Johnson's 
suggestions, with the penal clause changed, I nardly think it is nec- 
essary to read it. 

Mr. Clarke. You do not care to have it read? 

Representative Currier. Not if that is all it does. 

Mr. Clarke. That is all it does. 

The Chairman. That is all you have to say, Mr. Clarke? 

Mr. Clarke. That is all. Senator. 

The paper referred to is as follows: 

Form of section 31 of United States Senate bill 2499 (Smoot bill) submitted to the 
Joint Committee on Patents by the American Dramatists Club March 26, 1908: 

Sec. 31 . That any person who for profit shall infringe any copyright secured by this 
act, or who shall aid or abet such infringement, unless able to prove to the satisfaction 
of a court of competent jurisdiction trying the case that such infringement was neither 
willful nor knowing, and any person who shall transcribe without authorization any 
copyrighted but unpublished drama, play, operatic composition, or stage piece, or 
shall vend any unauthorized or pirated sul)stantial copy of such drama, play, operatic 
comjKjsilions, or stage piece, shall be deemed guilty of a misdemeanor, ana upon 
conviction thereof shall be punished by impriscmment for not exceeding one year, or 
by a fine of not less than $100 and not exceeding |1,000, or both, in the discretion of 
the court. 
Respectfully submitted. 

Harry P. Mawson, Chairman. 
Joseph I. C. Clarke, 
Charles Klein, 
George H. Broadhurst, 
Clinton Stuart, 


The Chairman. I believe there is a gentleman present who desires 
to speak in opposition to the views expressed here by Mr. Clarke and 
others representing the dramatic autnors. I do not see him here. 
I did desire that this whole subject-matter be discussed at the present 
time, so as to have it in the record as compactly as possible. I 
promised that gentleman that he should be heard. I do not know 
why he is not here. 

if that is all at the present time upon this subject, we can go to 
some other subject-matter. 


I suppose the gentleman who rose, whose name I do not know, 
represents the music Engravers* Union? 

Mr. Frohnhoefer. Yes, sir. 

The Chairman. What you have to say has reference to the manu- 
facturing clause? 

Mr. Frohnhoefer. Yes, sir; entirely. 


The Chairman. Give your name to the reporter, please. 

Mr. Frohnhoefer. Henry J. Frohnhoefer, secretary of the Music 
Engravers' Union. 

Mr. Chairman, ladies, and gentlemen, I am here before you as the 
representative of the Music Engravers* Union, in order to try and 
induce you to make a slight change in sections 13, 16, and 17 of the 
bill known as the Currier bill (H. R. 243), or sections 12^ 16, and 17 
of the Kittredge bill. In order to protect the music-engraving 
industry of this country it is absolutely necessary for these changes 
to be made. 

The following are the changes I propose: 

In the Currier bill (H. R. 243), section 13, page 7, Une 10, 1 propose 
to add the words '' musical composition; " so that it will read " periodi- 
cal or musical composition shall have been produced in accordance 
with the" 

Representative Leoare. You want to insert the words *'or musical 

Representative Currier. Striking out the word "or" before 

Representative Leoare. And putting after "periodical" the words 
" or musical composition." 

Mr. Frohnhoefer. "Or musical composition;" yes, sir. 

Section 16, page 8, line 16, I propose to strike out the word "or" 
before "periooical" and put after it the words "or musical compo- 

The Chairman. That is the same thing. 

Mr. Frohnhoefer. The same thing. 

Section 16, line 17, after subsections (a) and (b), I wish to add the 
letter (e). 

Representative Laoare. After (b) you want (e) ? * 

Mr. Frohnhoefer. Yes, sir. 

In line 23, page 8, 1 wish to add the words " or music plate engrav- 

The Chairman. Then it will read "or, if the text be produced by 
a lithographic process or music plate engraving process." 

Mr. Frohnhoefer. Yes, sir; the text be produced by lithographic 
process or music plate engraving process." 

In line 25, on the same page, I wish to add the words "or musi- 
cal composition" after "book." 

Section 17, page 9, line 9, I wish to add the words "or musical 
composition" after the word "book." 

Lme 14, 1 also wish the same there — "who has printed the book or 
musical composition." 

line 19, I wish to add after "process" the words "or rauavo. ^\a^j^ 
engraving process." 


Representative Legarb. Let us get that right. You do not want 
the word "process" twice? 

Representative Currier. He wants to strike out the word " process * ' 
after the word "lithographic" and make it read "Hthographic or 
music plate engraving process." 

Mr. Froiinhoefer. les, sir. 

In line 21, I want to insert the words "or musical composition" 
after the word "book." 

That is all I have to say, gentlemen. 

Representative Currier. I would like to have your reasons for 

Mr. Frohnhoefer. The reason we propose is that because pub- 
lishers of late are having a good deal oi their engraving done in 
Europe, and by so doing they have reduced the work of American 
engravers to three days a week for about six months a year. We 
can not compete with the engraving in Europe, because the differ- 
ence in money and express and everything makes a difference of about 
50 per cent cneaper. 

The Chairman. What do you mean by express? 

Mr. Frohnhoefer. Why, figuring everythmg in, the expense they 
have in shipping it over here. 

Representative Currier. They still make it 50 per cent cheaper? 

Mr. Frohnhoefer. About 50 per cent cheaper, the difference of 
money and expense and everything. 

The Chairman. Is that the fact with all classes of engraving? 

Mr. Frohnhoefer. It is with our line, music engraving. They 
used to have the plates sent over to the custom-house, and the biggest 
part of them went through there with no duty on them, simply 
stamping goods "Sample" or else "No value." I have seen a case 
where 210 plates came through the custom-house without a bit of 
duty on them, stamped "No value," and they were passed all right. 
Of late they have just simply changed it a little bit ana send a transfer 
over, and make a plate on the other side and send a transfer over and 
transfer to a Uthographic stone and print it therefrom. 

Representative Currier. Have you samples of that? 

Mr. Frohnhoefer. Yes. sir; I nave samples of plates and trans- 
fers right with me, if the cnairman wishes to see them. 

Representative Currier. Suppose you show them. Where were 
those plates made? 

Afr. Frohnhoefer. They were made outside the United States. I 
couldn't say at what factory they were made or what firm made 
them* but they were made outside the United States. Here I have 
samples of books that have been engraved outside the United States 
and printed and copyrighted in the United States. The copyright 
is on every book. They are operas and scales, etc., aU classical 
music; and here are plates that are engraved and filled with ink, 
just as they came from the printer. Of late they have gone to 
sending over the transfers through the mails. Instead of sending 
over the plate, they just send the transfers over. 

Representative Currier. What do they do with the transfer when 
they get it? 

Mr. Frohnhoefer. They transfer it onto a lithographic stone. 
They transfer from this to a lithograpliic stone and print them there- 
from. By so doing, of course, they make more than 50 per cent 


Representative Leoabe. Are you the only one representing this 
particular question? 

Mr. Frohnhoefer. Yes, sir. 

Representative Leoare. Will you prepare a brief giving your rea- 
sons and send it to the stenographer witiiin a week or so? 

Mr. Frohnhoefer. Yes, sir; I could send it within a couple of 

The Chairman. That will be placed in the record immediately after 
your statement. (See appendix for brief, pp. — .) 

Representative Legare. Give your reasons in brief form, so that 
we wul have some data and facts to know what we are discussing. 

Representative Currier. Do you know whether those came through 
the custom-house as of no value? 

Mr. Frohnhoefer. No; these plates I have here we engraved our- 
selves, but we brought these as a sample. Of course, we could not 
get any plates that came through the custom-house. Th^y belong 
to the piiblishers. 

Representative Currier. Have you ever seen them? 

Mr. Frohnhoefer. Yes, sir; I have seen a box with over 200 plates 
come through. 

Representative Currier. How did they come through? • 
- Mr. Frohnhoefer. The box had a label on it of the different 
express companies, in the regular way they are made out, and when 
it came down to the value it was marked **No value." 

Representative Currier. It had 250 plates in it, you say? 

Mr. Frohnhoefer. There were over 200 plates. We tried to get 
the label, but of course the firm that had it m charge would not give 
us the label. 

The Chairman. How long has this been going on? 

Mr. Frohnhoefer. I suppose it has gone on ever so long, but we 
have noticed it only lately. It has got so bad that we are only work- 
ing three days a week, about six months out of a year — in New York 

jRepresentative Currier. How many men are probably employed 
in the coimtry as music engravers? 

Mr. Frohnhoefer. Well, in the country probably around 500 men, 
anjiiow, in that line — music engraving. 

The Chairman. Am I to understand that this engraving, which you 
call music engraving, is different from any other kmd of engraving? 

Mr. Frohnhoefer. Well, I don't know that it is any different. 
Of course, it is all done by hand. There is no machinery or anything 
attached to it. I suppose it is done on about the same style as is all 

The Chairman. Then your term *' music engraving" has no special 
significance other than specifying a particular class of engraving? 

Mr. Frohnhoefer. It is about on the same style as any other 
engraving. Of course, we simply engrave music. 

Kepresentative Law. Why not simply say ** engraving" instead 
of 'music engraving?" 

Mr. Frohnhoefer. I do not know whether it would cover oui* 
part of it. 

Mr. BuRKAN. Mr. Chairman, I think I can throw a little light 
upon that subject, because I have prepared myself to speak to the 
committee on it. 


The Chairman. Are you through, Mr. Frohnhoefer? 

Mr. Frohnhoefer. les, sir; I am through as far as I am con- 

The Chairman. You will be excused, then. Are there any other 
parties here who desire to speak on the subject of engraving? 


Mr. BuRKAN. On behalf of the Music Publishers' Association I 
desire to state that this matter is of interest to publishers deaUn^ in 
foreign publications, because it is cheaper to have American publica- 
tions ei^aved in this country than to send the manuscripts from 
this country to Europe and then have the plates engraved there and 
the scores printed there and shipped to America. 

Representative Currier. That is so with books, is it not? You 
could produce them cheaper over there than you could produce 
them here, could you not? 

Mr. BuRKAN. But not in music. I do not know anything about 
books, but I am speaking of the musical proposition. I do not know 
of a case, and I do not thmk the former speaker can point out a single 
instance where that was actually done. I would like to have- him 
furnisli me the name of a single American publisher 

Representative Currier. The former speaker has certainly said 
he knew of such an instance, where 200 plates came through. 

Mr. BuRKAN. Will he state the name of the person or the name of 
the firm ? 

Representative Currier. Naturally he will not. 

Mr. BuRKAN. The mere statement that he knows, unless he states 
the name of the party or somebody who actually did ship the plates, 
is not evidence of any fact. 

Representative Currier. He might have reasons for not giving 
the name. He can give the name if he cares to. 

Mr. BuRKAN. Have you any reavSon for not giving the name? 

Mr. Frohnhoefer. I don't want to lose my job. 

Mr. BuRKAN. I want to state, with all due respect, that I do not 
believe this gentleman's statement is correct, because there is not an 
American music publisher who is pubHshing compositions written in 
this country who has ever sent the manuscript abroad to have the 
plates engraved. It is true there are publishers in this countrjr 
representing foreign houses who sell in this country music that is 
published and printed on the other side, because the demand is not 
sufficiently great to warrant the expenditure of money in engraving 
plates and printing American editions. That is a question that 
mterests principally foreign publishers. 

Representative Currier. If this is a question between the Amer- 
ican workingman and the foreign publisher, it will not take me a great 
while to reach a conclusion. 

Representative Leoare. If your contention is correct, what harm 
could this do your people? 

Mr. BuRKAN. It would do harm in the case of a foreign publisher. 
For example, take one of the foreign operas; there is very Uttle 
demand for tnat opera in' this country^ ana he can not sell more than 


10 or 12 scores. Does it pay to have special plates engraved in this 
country for the purpose of seuing 10 or 12 scores? 

Representative Leoabe. You said it was cheaper to do it. • 

Mr. BuBKAN. Yes, if he is going to sell 2,000 or 3,000 scores. But 
does it pay to print 5 or 6 or 10 scores? Where there is a sale of 
200,000 or 300,000 copies of a single pubUcation, then it pays; but in 
a case where the sale is limited to 5 or 6 or 12 copies it does not pay. 
This is a question that principally interests the foreign pubhsher. 

Representative Cubrier. We are not sitting here to represent the 
foreign pubUsher. 

Mr. BuRKAN. But these publishers have certain rights, and I be- 
lieve the committee are wilhng to hear these men. I ask that they be 
given a chance to offer some memorandum or argument on the propo- 
sition. I am not prepared to discuss the matter at this time^ because 
the amendment onered is in the nature of a surprise. I think there 
are some publishers who desire to be heard in this matter, but they are 
not here. So far as my clients are concerned, they do not care 
whether it goes in the bill or not. 

Representative Currier. Then you personally represent nobody? 

Mr. BuRKAN. I represent an association, and there may be in the 
association two or three or four or five men who want to be heard on 
this proposition. I simply ask that these men be given an oppor- 
tunity to submit a memorandum or appear in person to offer argu- 
ments on this proposition. 

The Chairman. We will hear them, Mr. Burkan, when they come 

Mr. Burkan. Will you give them an opportunity to be heard ? 

The Chairman. Certainly; they will nave an opportunity to-mor- 
row to speak on this proposition. 

Mr. W. B. Hale. Mr. Chairman, is the manufacturing clause up 

The Chairman. Before we take that Question up, Mr. Walker said 
he would like to speak on question under discussion. Will Mr. Walker 
say what he has to say at the present time ? 


Mr. Walker. Sections 13, 16, and 17 of the Currier bill and of the 
Smoot biU propose to protect American workmen against foreign 
competition oy providing that certain classes of materials covered by 
copyrights in this country shall be manufactured in this country. 

Kepresentative Currier. All the bills are identical in that respect, 
are tney not? 

Mr. Walker. No; there is a material difference between the Smoot 
bill and the Currier bill, on the one hand, and the Barchfeld bill and the 
Eattredge bill on the other. I wish to say to the committee that none 
of those sections appear to me to be drawn by anybody who understood 
the different methods of manufacture sougnt to be protected. . 

Representative Currier. I might say we have it in mind, if those 
sections go through, to amend them. 

Mr. Walker. 1 wish to state what appears to me to be the situa- 
tion of affairs, and that situation is not disclosed in any of the bills. 
All the bills propose to give the American workman the monopoly of 
setting type. They also propose to give to the American worksc^fts^ 


the monopoly of making stereotyped plates from that type. The 
Smoot bill and the Currier bill take one step in addition ana propose 
to give the American workman the monopoly of lithographv, and go 
no farther. The Kittredge bill and the Barchfeld bill do all that the 
Smoot bill and the Currier bill propose to do, and go one step farther 
and propose to rive them photo-engraving. Photo-engraving does 
not include the Kind of engraving that is so near the heart of the 
young gentleman who spoke a Uttle while ago, because that is hand 
engravmg. Further than that, photo-engraving does not include all 
kinds of process engraving, because there are methods of full me- 
chanical printing which do not come imder the head of photo-engrav- 

If the committee desires to give the American workman the mo- 
nopoly of all kinds of business, it can do so by substituting in sec- 
tion 16, page 8, lines 27 and 28, the word ''other" for the word 
"Uthographic." Then the whole subject will be surrounded, because 
the word ''process" will include lithographic process, photo-engraving 
process, as mentioned by Mr. Barchfeld, and wiU include full methods 
of mechanical printing not mentioned by any of the bills. It will 
include also hand engraving, except music. 

The Chairman. You propose to strike out the word "lithographic" 
and say "other processes?" 

Mr. Walker. Wherever the word "lithographic" occurs insert the 
word "other," and wherever the word "Uthography " occurs use some 
other word. 

The Chairman. In line 2 strike out the word "lithographic?" 

Mr. Walker. Yes, and substitute the word "other." 

Representative Currier. May I ask a question for information? 

Mr. Walker. Certainly. 

Representative Currier. Do the courts hold that a musical com- 
position is included within the term "book?" 

Mr. Walker. Yes; that has been held in England for more than 
a hundred years. 

Representative Currier. And sheet music? 

Mr. Walker. That was decided by Lord Mansfield in 1777, in the 
case of Bach against Lincoln. The statute provided for copyrights 
only on books, and John Christian Bach sued a man named Lincoln 
for infringing a copyright upon a sheet book of a certain composition 
of Bach. The defendant defended against that suit on the ground 
that sheet music was not a book. Lord Mansfield decided that it 
was, and that has been the view in England and in this country ever 

Representative Currier. Has that been followed by our courts? 

Mr. Walker. It has, so far as the question has arisen at all. 

Representative Currier. Has the question arisen? 

Mr. Walker. I do not remember any case in which it has arisen, 
but all authors who have written on the subject have taken that view. 

Mr. O'CoNNELL. Permit me to ask a question. Have the courts 
decided that a musical composition is a book, within the manufactur- 
ing clause, so as to require that the printing or engraving of music 
sheets to be copyrighted here must be done in this country? 

Mr. W^ALKER. I tnink not, because I was not alluding to the manu- 
facturing clause. I was alluding to the question as to whether or not 
a copyright law that should give a monopoly upon a book is broad 
enough to cover sheet music. 


RepresentatiTe Currier. Tlie point I was trying to ^et at was 
whetner there had been any American decisions broad enough to 
include, under the term "book" in the nianufacturintr clause, which 
is penal in its nature, a musical composition. 

Mr. Walker. No; that qiialiiication was not inserted in your 
question, and I answer that in the negative at once. 

Mr. O'CoNNELL. That answers my question, sir. 

Mr. Walker. I do not stand here to advocate any particular 
client or any particular interest in reference to the manufacturing 
clause, but I do stand here to explain to tlie committee, as somewhat 
of an expert in the matter, the practical situation of affairs. I have 
said that if the committee desires to give the American workman the 
monopoly of this it can do so by substituting the word '* other." 

I wish to make this suggestion: It may be the committee will not 
desire to make so comprehensive a statute as that, because* Mr. 
Putnam explained this morning that in respect to certain lithographic 
work it was entirely inconsistent with the welfare and progress of the 
art to compel all copyright Uthographs to be done in this country. 

Now, in respect to the musical engraving the same thing holds true; 
because, as Mr. Burkan said, it sometimes happens that an opera is 
composed abroad and is engraved abroad by hand, and the sale abroad 
is much larger than it is in this countrj^; but the composer is entitled 
to a copyright in the United States. He ought not to be burdened 
with the expense, after having engraved all his music abroad, of 
engraving it nere for the sole purpose of producing here the few copies 
that would be taken by the American market, in any event. 

Representative Currier. Exactly; that same thing would api)ly to 
an English book, however, would it not 'i 

Mr. Walker. It would apply to any book where the demand in this 
country was very small. tVhere the' demand for a particular cony- 
righted article in this country is large, then the suggestion of Mr. 
Burkan has no application. 

Representative Currier. Would not that be tnie as to some music? 

Mr. Walker. It would be true as to some music and not as to other 
music. In the case of a grand opera composed abroad by some for- 
eign composer, he gets a large market abroad. If you are going to 
compel that man to have another set of plates engraved in this coun- 
try as a condition upon which to grant liim an American copyright, 
you will impose upon him a double burden of expense, and tliat will 
ultimately rail upon the purchaser. 

Mr. O'CoNNELL. May 1 say a w^ord, Mr. Chairman? There ought 
to be no discrimination in a copyright bill, or any other bill, against any 
class of American workmen. If it is proper and just to protect the 
printers and bookbinders, it is just as proper and just as fair and just 
as necessary to protect the music engravers. If it is essential that the 
copyright proprietor of a foreign book must have the prcsswork and 
prmting done here, it ought also to apply to every sheet of a foreign 
musical composition for which copyright is claimed in tins countr>% 
If they only print a few sheets, they do not need a copj'right . They 
do not want it. If only a few sheets can be sold, then nobody will go 
to the trouble and expense of infringing it. 



Mr. Wood. Mr. Chairman, I did not come prepared to speak before 
you, but I think I can give you some information on the engraving of 

The Chairman. We will be glad to hear from you whatever you 
have to say. Please be as brief as possible. 

Mr. Wood. I am not a public speaker, and I can not speak very 

In the first place, the gentleman said it costs more to engrave plates 
in America than it does in Germany. I am engraving plates in Ger- 
many, and I am engraving plates in America. When 1 engrave plates 
in Germanv and import mv plates and pay the duties my plates cost 
me more than they do in America to-day. That answers that point. 
I can prove to you that my plates that are imported from Germany 
cost me more than the plaCes I engrave in America. 

The Chairman. Why, then, do you have any engraving done in 

Mr. Wood. For the reason that I can get better work in Germany 
than I can in America, and I am willing to pay the additional cost. 1 
can prove it to you absolutely by bills, but of course I can not do it 
to-night. I can answer every point this gentleman has brought up by 
actual experience. 

Representative Currier. What is the duty on these plates) 

Mr. Wood. Twenty-five per cent. And would I i are to bring 
plates through without pftymg duties? No; I should be liable to a 
very heavy fine. 

The Chairman. Mr. Wood, could you get it here by tomorrow? 
. Mr. Wood. I could not get the bills here. My bills are in Boston. 

The Chairman. I do not mean the bills. Could you get the work 
that could demonstrate to us that what you have done abroad is 

Mr. Wood. I can bring up works from the Library of Congress. 
Mr. Solberg wUl bear me out, I think. I have cop>Tighted a great 
many works for the foreign publishers. I have a ^eat interest in 
this myself. I can prove to you that I am engraving ten times as 
much in America as I did when I started. I started by engraving 
everything in Europe. Now, I am engraving in America nine-tenths 
of all I engrave, and I am trying to establish a business in London. 
I have invested ca[)ital there that has never yet paid, but if you pass 
a law like this and cut down the foreigners* rights any more in America 
we shall be shut out of England, and out of Germany, and can not do 
a thing in Europe at all. Our only market must be here. We can 
not enlarge our field and do business in Europe. I go over there 
with the music of American composers. The work is engraved here, 
printed here, and sent over there. I can not do it if you are going 
to compel the foreign publishers to engrave here all oiF their works. 
I can show vou it is impossible. I can bring you proofs. I can 
bring a buncfle of scores that thick [indicating]. 

We published the libretto of an opera, because the libretto was 
considered a book here. They thought it might have a success. 
We printed the libretto and set up the whole plates to comply with 
your law. We have not sold a single copy, because the performance 


never was given here, but we must have a coDyri^ht in case it is 
ever given. It was a Wagner opera. I could bnne up from the 
library the scores of two operas done in that way. I can give you 
every point you want in regard to this subject. 

The OoAiBMAN. Let me ask you a question. What do you say in 
relation to the statement made by Mr. Frohnhoefer in relation to the 
importation of engravings from Germany having reduced the labor 
in this country nearly 60 per cent. 

Mr. Wood. Just iJefore I came over here, I read an article in the 
mi^zine published by the music publishers in Germany, saying there 
had never been a year since 1903 when the engravers had done so 
little work in Grermany as they have done this year. I can show you 
the prices they are getting over there. I can engrave cheaper here: 
and in addition to that, I am in favor of labor. I am in favor of 
doing everything I can here. 

Representative Curkier. What has been the condition of the 
business in this coimtrv the past year? 

Mr. Wood. Well, I nave not been able to get engraving done that 
I wanted. That is absolutely true. 

Representative Currier. Has there been a great demand for music) 

Mr. Wood. We have had a good trade. 1 started in 1893, in the 
dullest year. My idea was to get ready in the dull times for the good 
times. I have been engraving right along. We could not sell it all, 
but we get it engraved. Now is the time. 

Representative Currier. Why is now the time, if there is an 
immense pressure of work ? 

Mr. Wood. I will tell you in a moment. When I came back from 
Europe last June, my engraver, one of the best in the country, and 
the only one who has ever been able to do the work as I wanted it 
done, except in Germany, made an agreement with my competitor 
so that he could not enCTave for anybody else. Of course, he was 
very sorry, but he would be obliged to let me get my engraving 
some place else. What could I do? I must have the best engraving 
in my business. That is my only salvation. Within two weeks' 
time ne has written me that on account of the dullness of this other 
firm's business, he stands ready to come and do some work for me. 
I wrote him immediately to the effect that I had some engravers 
noV at work for me and that I could not turn them down in a week, 
as they had protected me right along during this time. I told him 
that I must give them work, but that if he would wait and rive me 
time to get w-ork ready, he should also have work from me. I wrote 
him just before I came here. I said, "I am called unexpectedly to 
Wasnington. When I get back, I will have some engraving for you.'' 
I want all I can get of that man's en^aving. I can answer everything 
this gentleman has said here, and ^ive you the proofs. 

Representative Currier. We will be very glad to have you furnish 
that as soon as you can. 

Mr. Wood. I can answer everything here. 

The Chairman. Is this your private business 1 

Mr. Wood. It is a corporation in which I own a controlling interest, 
and in this sense it is my private business. It started in 1893. 

The Chairman. What is the name of the concern? 

Mr. Wood. The B. F. Wood Music Company. We started as a 
small concern. We have a fairly good business. We are gaining in 

3920T— 08 i 


London remarkably well with American music composed in America, 
engraved in America, and printed in America, but, unfortimately, I 
have to put on the bottom of every sheet of music '* Printed in 
U. S. A.," or I can not get it into England. I am afraid if you an- 
tagonize those people over there, they will say, ^'Our labor and men 
must be protected. Don^t buy that music with 'Printed in U. S. A.' 
printed on it." Then I have got to print it in Europe. I am there 
to stay. 

Representative Currier. Call their attention to the working 
clause in their patent laws. 

Mr. Wood. I know nothing of that; but I know this is absolutely 
my experience. I can only rive you my experience. 

Representative Legare. You say you have more demand for 
music than for engraving? You can not get aU your engraving 

Mr. Wood. I was not able to do it. Of course, if this man now 
gives me what engraving I want, I can. I can not get the kind of 
engraving I want. Of course, you do not know my business. Mv 
business is not affected by the mechanical instmments. We pubUsn 
many works of a classical nature. There is no copyright on them. 
There are manj editions on the market and if I have a new edition, 
how can I get m? The only way is to have a better edition than the 
other fellow has. That is why we want the best engraving. 

I will tell you what we have to do. Our main office is in Boston. 
We are now havin«; our engraving done in Cincinnati, pa>4ng express- 
age back and forth there, and paving the price that tiiey ask. It is 
oneap. I do not find fault at afl with their prices. 

The Engravers* Union is a very small affair and is a very unjust 
one, from my experience with it. I do not know this gentleman, 
and I am only speaking from what I know of the union m Boston. 
This good engraver I speak of is really a boss engraver. He has 
several assistants working for him, but he does personally the engrav- 
ing I want, and he is an artist.. Awhile ago, when he wanted to do 
more work and to educate some apprentices in taking up this engrav- 
ing, they said, "Look here; only one apprentice shalTbe added a year 
to this business, and if you take any more we will shut down on you." 
And they did shut down on him. That is why I think the umon is 
unjust. It is a very small organization. It does not seem to be 
possible that the number is as large as 500. It may be, however. I 
Am not telling you from absolute knowledge. 

As to the music engraving, thev call it engraving, but nine-tenths 
of it is music punching. They nave five claws, Tike that [ demon- 
strating with the hand]. These represent the lines. They draw 
those across the plate. Then they nave all the various signs, the. 
noteheads, clefs, snarps, flats, etc., m the form of steel punches which 
they strike with a small hammer, thus punching the various charac- 
ters into the plate. It is a punched plate, not an engraved plate. 
Finally, thev add some Uttle embellishments, Uke the slur lines, etc. 
They put these in with a graver, but that is not engraving. They 
call it an " engravedplate because it does not sound so well to say 
*' punched plate." Tiiis gentleman will confirm me, I think. Is not 
that true? 

Mr. Fbohkhoefeb. What is thati 

Mr. Wood. You do punch the plate. 

Mr. Fbohnhoefeb. Not all of it 


Mr. Wood. AU except the slurs. What about the words and 

Mr. Fbohnhoefeb. What about the stems and bar lines) 

Mr. Wood. They are straight lines. 

Mr. Fbohnhoefeb. It does not make any difFeronco whether they 
are straight or not. They are done by hand. They are engraved. 

Mr. "\^ooD. Nine-ten tW of it is done with punches. 

Mr. O'CoNNELL. Might I suggest, Senator, that if this industry is 

Erotected for Amerian workmen this gentleman will very quickly 
ave all the men he wants in the industry, instead of being festricteci, 
as he says he is now, to a few men. 

Mr. WOOD. I am with the workingman. I have proved it in my 
own business by printing here, engraving here, and sending my music 
abroad. I do not think you can gainsay me. I can absolutely prove 
it by my shipments to Elurope. 

I(epresentative Currier. Your view, then, would be that tliis 
would prove in the end a disadvantage to the members of the Music 
Engravers' Union? 

Mr. Wood. I do not see that there is any need of it. Yes, in one 
way, that would be true. It would force the foreign publishers to 
lose their copjTight on valua!)!'^ works. You never know whether a 
musical work is going to succeed or not. It is not like a book. I 
would Uke to show you to-morrow the score of a Wagner opera. 
There is another process that has not been spoken of at all. Music 
can be produced oy a different process. It is not engraving. It is 
not lithograph. It is done by a pen. Now, can we conyrignt music 
in that form? If you can fix that, that woukl cover a big part of it. 
That would partly protect the foreign publishers. 

Representative Legare. Would this change affect American work- 
men f Would it be to their detriment or their betterment? 

Mr. Wood. I should say it would help them. 

Representative Leoare. Would it help them or hurt them, even 
though they are small in numbers? 

Mr. Wood. I am quit« sure it would help this small body of 
engravers, but have I not some consideration also ? Have I not so 
many people, with so many families dependent on me ? Have I not 
some snow to extend my business beyond the boundaries of America? 

Representative Legare. Undoubtedly. We want to get at both 
sides of the question. 

Mr. Wood. Well, I was not prepared for this, but I can answer 
every question he has put up, by proofs. This may bring a new 

Srocess in here. I thiuK it is called the autographic process. They 
o work in Germany with it so nicely that it is almost impossible to 
tell it from an engraved process. They can not do it here. I abso- 
lutely can not get it done. 

The Chairman. If you desire to make any other statement in the 
way of proof that you spoke of, you may suomit it here, and we will 
have it go in the record in connection with your statement. 

Mr. Wood. I can prove to you by my engraving bills that I have 
had in Germany^ if you ^ill allow me time to get them from Boston, 
but I aiyi afraid I am the only one who can do it. 

The Chairman. Mr. Wood, you may have a week. 

Mr. Wood. I can do it in two days after I get home. 

The Chairman. You may send it in any time before printing. 


Mr. Wood. I will send you my receipted engravers* bills. I will 
send you at the same time^ if you want them, the proofs or prints 
from the plates. 

The Chairman. Whatever proof you want to submit, you may 
submit in writing, and we will see that it goes in the record. 


Mr. ELkLB. I want to say a few words on the manufacturing clause. 
It is too late to discuss the general poUcy of the domestic manufac- 
ture clause, but it is not out of place to suggest that that is aimed 
solely at the protection of American labor, and has nothing whatever 
to do with protecting the rights of authors or of the pubuc to their 
just and etjuitable rieht in the productions of authors. 

By putting these clauses as a condition of the validitjr of the copy- 
right, you are putting in just so many more technicahties by which 
the copyright may fail. Performance of all these technicalities will 
have to be proved, many years afterwards, by oral testimony, and 
anyone who has ever attempted to prove a copyright after a great 
many years knows what a difficult thing it is to do. 

I have no objection wiiatever to protecting the American laborer 
in all these matters, but I think the proper way of protecting him 
is by prohibiting, during the Ufe of tne copyright, tne importation 
of the copyrighted work or of the plates, the means of the production 
of the copynghted work. That will give American labor absolute 

Another way of protecting American labor is by putting a duty 
upon the importation of books or plates or other means of produc- 
tion* but to make them a condition of the vaUdity of the copyright, 
I tlunk, is bad policy. 

So much for the matter of protecting American labor. Then I 
should like to speak specifically of a provision in section 16 of the 
Smoot bill, on page 9, referring to illustrations in books. The 
domestic manufacture clause applies to tliis. 

Representative Legare. That is in line 6? 

Mr. Hale. Yes; beginning at the latter part of line 5 and running 
to line 8. 

I suggest, if you are going to require illustrations in books to be 
made wholly by domestic process, that that be disassociated from 
the books and dealt with separately. Practically, the illustrations 
are the matters which are copyrightable under clause k in section 5. 
I would suggest that that be dealt with independently. If the com- 
mittee wishes to report that it should be protected, 1 suggest that it 
be done somewhat like this: 

That of the prints and pictorial illuetrations specified in ecction 5, subsection k, of 
this act, all copies afforded prote<'tion shall be made by a process wholly perfonned 
within the limits of the United States. 

The point of my o])jection is that if by any chance an illustration 
in a book should not have been produced within this country^ possibly 
the copyright upon the entire oook, text and all, might mil. They 
are distinct things, and they should not be associated together. 

Representative Legare. How is that, again? 

Mr. IIai.e. My idea is that if an illustration in a book should, for 
any reason, not be manufactured wholly in this coimtry, possibly 


under the provisions of section 16, as it now stands, the copyright on 
the entire Dook might fail. 

Representative Currieb. Mr. Hale, perhaps we had better have it 
appear in the record whom you represent. 

Mr. Hale. The American Law Book Company, of New York. 

So much for that. Then the kindred sections, 17 and 18, which 
refer to an affidavit in connection with these things, I think are 
useless and should be wholly omitted, with nothing substituted for 
them. We have a domestic-manufacture clause in the present law, 
and we have no such a provision for affidavits. Thejr are simply one 
other act which must be done to secure a valid copyright, and which 
years hence, possibly, will have to be proved in some suit for infringe- 
ment of that copyright at a time wlien the j^roof is not available. 
I think there ought to be as little of that as possible in this bill. 
The very piupose is to simplify and make sure and certain and safe 
that a copyright taken out is valid. 

Representative Currier. Two bills have been passed by (Congress 
since I have been a member of this committee to which the labor 
unions made objection at conferences with the publishers, and they 
withdrew the objection upon the statement that a provision similar 
to this should be embodied in the law. 

Mr. Hale. I would suggest that the safest way to protect the 
American laborer is by prohi])iting the importation or copyright 
books or other articles for which you intend to accord labor protec- 
tion or the means of production of those articles. That would pro- 
tect labor absolutely. 


Mr. Putnam. The publishers have protested from the outset 
against that affidavit provision as not necessary and as putting pub- 
Ushers alone, among all the law-abiding citizens of this country, in 
the position of being required to not only obey the law but afterwards 
to swear that they have obeyed the law. We accepted it under pro- 
test. If you honorable gentlemen decide to include that affidavit 
clause, we shall of course accept it, but it will always be under pro- 
test. It is ungermane and puts an indignity upon the publishing 
body. It brings, as Mr. Hale has said, unnecessary new restrictions 
upon copyright, the penalty now of copyright, forfeiture, being quite 
serious and effective. 

Representative Cukkier. Mr. Putnam, you remember that when 
the bill giving an ad interim term was passed the agreement which 
was reached did not give the foreign authors any such protection 
as they afterwards got in the bill by a Senate amendment. We did 
not have the exclusive right to translate and copyright during that 
ad interim term. It was open to anybody else to proceed. Senator 
Piatt amended the bill in the Senate,"^ giving them tne exclusive right 
in the ad interim term, and I said to Senator Piatt that broke the 
agreement, and the House committee could not act without consult- 
ing with the gentlemen who were parties to the agreement. He 
aaKed me then to see if the labor people would withdraw their objec- 
tion. I sent for their representative, and he agreed to withdraw hia 
objection, with the understanding that the other part oi t^^ *^^te^ 
ment should be carried out, and I reported a biU and Vxad it p^j^jsed 


throug;h the House carryins out that part of the agreement, and it 
failed in the Senate simply for lack of time. 

Mr. Putnam. I can only say for myself, on hehalf of the authors 
and publishers we have to do with, that I had no knowledge of such 
an agreement. 

Representative Cubbieb. But you did accept that proposition 
before the committee acted upon itl 

Mr. Putnam. Are you spealdng to me individually 1 

Representative Cubbieb. Yes. 

Mr. Putnam. I would not raise an issue with you, but if I did, it 
has dropped from my memoir. 

Representative Cubbieb. As I understood, you &gi*^d to the bill 
as it passed the House, with an understanding. That same under- 
standing was had when we passed the bill in reference to the St. 
Louis Exposition, and Mr. Tawney introduced a bill at that time to 
carn^ out the understanding. 

lnu*. Putnam. I can only say my memory as to any understanding 
differs from yours. 

Representative Cubbieb. My memory may be in fault. 

Mr. Putnam. I had no idea the two things were connected in any 
way at fdl. 

Mr. Feeney. I would like to reply to Mr. Putnam, for the book- 

Mr. Hale. I desire to concur with Mr. Putnam's views as to the 
affidavit. I think it is whollv unnecessary and very bad policy to 
them and unfair to the publishers in every sense. 

Representative Leoabe. What is the objection to that? 

Mr. Hale. One objection is that we have to pubUsh to the world 
what particular house prints our book. If we attempt to enforce our 
copynght in court, we nave to prove it is enforced in accordance with 
the domestic copyright. Suppose we fall into disfavor with some of 
the labor unions and they put us on the unfair list. You can see 
what might happen. It is not necessary. It is not needed. It has 
no effect when it is comphed with. It is merely one added point, one 
more Unk in the armor by which a copyright may be lost. That is 
the trouble with the present copyright law. It is too easy to lose a 


Mr. Johnson. Mr. Chairman, I might recall to you that I am the 
secretary of the American Authors' tlopyright Leapie. This is an 
occasion of surprises. Coming to this meeting, I haa for the moment 
an impression that I was attending a meeting for the revision of the 
tariff and not a conference on the subject of copyright, the question 
of wages abroad as compared with wages here. 

The Chaibman. Mr. Johnson, I would not take any more time of 
the committee to discuss that question. Speak on whatever point 
to which you desire to address yourself. ^ 

Mr Johnson. I desire to lEisk a question. Mr. Hale rives the im- 
pression that there is something in the copyright bill which provides 
that the illustrations of a book shall be manufactured in this country. 
I think I am right in my iirferencei Mr. Hale. 


Mr. Hale. I think ]rou will find it in clause 16 of the Smoot bill. 

Mr. Johnson. I desire to point out in a veiy few words how ab- 
solutely absurd that will be. The Century Company will print in the 
fall a volume by Robert Hichens on the ''Spell of T&gjpi,** The 
illustrations for that were made by an American artist, liir. Guerin, 
in Egypt. Does anybody presume to say that the illustrations of 
t^t Dook on Egypt ouglit to be made on Pennsylvania avenue, or 
that tiiey should not be made at all, or that, having been made, they 
should not be entitled to copyright? 

That is one of the questions we fought out in 1891, when, under the 
Sherman amendment extending the manufacturing clause to every- 
thing that was protected by copyright, everything was to be manu- 
factured in this coimtry which was protected by copyright. The 
very announcement of it brought down such a quantity of protest 
upon the devoted head of the honorable Senator irom Ohio tnat for 
a moment he was deluged and did not know where he was. It was 
absolutely impossible. How is a piece of sculpture, how*is a drawing 
of the Vatican, how is a drawing made by 

Representative Cubbieb. You do not imderstand that this bill 
covers anything of that kind? 

Mr. Johnson. Mr. Hale said so. 

Mr. Hale. You misunderstood me. 

Representative Cubbieb. There is nothing of the kind. 

Mr. Gbobqe H. Putnam. If I may comment upon Mr. Johnson's 
argument, it really would bear upon the discussion of this morning. 

Representative Cubbieb. It refers to illustrations as they are pro- 
duced by lithographic process, or photo-engraving, or something of 
that kind; not the illustrations themselves. 

The Chaibblan. Mr. Johnson, is that all you have to say? 

Mr. Johnson. Mr. Senator, 1 desire, whenever I may be able to 
have the attention of the conference for a little while, to state the 
position of the American Authors' Copyright League, representing 
nere the primary manufacturers, not the secondary manufacturers — 
who come here with the assurance of having so much attention — but 
theprimary manufacturers. 

* The Chaibman. That is, you wish to speak upon the manufactur- 
ing clause? 

Mr. Johnson. I should like to suggest an amendment to the manu- 
facturing clause. 

The (SiAiBMAN. Perhaps you had better do it right now, Mr. 

Mr. Johnson. The amendment I desire to suggest to the manu- 
facturing clause is embodied in the comparison of the copyright 
bills which has been sent to every member of this committee and 
which was made by Mr. Bowker, the vice-president of the American 
Authors' Copyright League, in such a way as to give a very clear idea 
at once of the provisions of each of the lour bills in comparison. 

The amendment I desire to incorporate — and in saying this I 
speak for the American Authors' Copyright League — is the follow- 
ing: In section 16 of the version I have, which is known as the 
typesetting clause, the insertion of the words "or the original text 
of a foreign work of foreign origin in language other than English.'' 

Representative Legabe. V>rhat line is that, Air. Johnson, and in 
what bill? 


Mr. Johnson. This is in the bill which is suggested by our com- 

Mr. George H. Putnam. If Mr. Johnson will excuse me, I think 
it is on page 8 of the Smoot bill, section 16, line 21. 

Mr. Johnson. I am unfortunately unable to refer to the section, 
because the sections are omitted. 

To express clearly at once the significance of this proviso, the 
the American Authors' Copyright League moves for the abolition of 
the manufacturing clause as it relates to books in forei^ languajge 
of foreign origin, not books in foreign languages of American origin. 
If the governor of Minnesota, for instance, should print in Norwegian 
his reminiscences, we should not desire to interfere with the pubuca- 
tion of that being required in this country by the American typesetters. 

The reason for our desiring this is that, unless something is done 
very soon to restrict the extension of the manufacturing clause, this 
country is going to suffer very much in the reciprocal relations with 
other coimtries. We have a growing trade with South America in 
text-books, for instance. Some of our text-books, I am informed, 
have gone into the hundred thousands. They are printed in this 
country and they are sold throughout South America. The whole 
manufacturing is done in this country. The composition is by Ameri- 
can typesetters. We have pending a treaty, under the signatures of 
the conferees of the Pan-American Congress, which has been pending 
for some six years, the passage of which would do more for the Ameri- 
can typesetter than all you could put into the copyright bill put 
together, because it would prevent wnat is sure to come 3 this policy 
of restriction is insisted upon — the forcing of all the other countries to 
make against us a reciprocal manufacturing clause from which arrange- 
ment we shall be sure to suffer more than they do, because the future 
in interest, the future in business, is ours, and now is the time for us, 
by a generous policy, which will also be a just policy, to lay down a 
principle which other nations will have to follow, so \hat the country 
which has the most business will have the most protection. 

Representative Currier. Have you seen any mdication in Europe 
in reterence to following our liberal policy, as shown in that clause? 
Is there a European country that does not enforce against us a most 
drastic manufacturing clause? 

Mr. Johnson. I do not kpow anything about that, except I know 
it is disputed. I know, Mr. Currier, upon your having commimicated 
that to me, I made inquiries of the German representatives in this 
country, and it was, in accordance with the letter I sent you, denied. 

Representative Currier. Oh, no ; not denied that they had a work- 
ing clause in their laws, but that it was less drastic than I suggested. 

Mr. George H. Putnam. There are no such provisions in the copy- 
right laws, Mr. Currier. 

Kepresentative Currier. I understand that fully, and even Eng- 
land now has gone over to a most drastic working clause in her patent 
laws. We are the only country on earth that has pursued an abso- 
lutelv liberal policy of throwing our markets open to everybody, with 
absolutely no return from any of them. 

Mr. Johnson. The patent system should be judged by itself. I 
blow nothing of the patent system, but I know something of the copy- 
right system. I know the treatment of Americans by every other 
country abroad is of the most liberal character. There is no manu- 


facturing clause against us in any country of the world in copy- 

1 am not pleading for this purely on the ground of sentiment, but 
I believe the question of doing the just and honest thing on the highest 
principle is one of the most yaluable assets that the country has erer 
nad or ever will have; and I come to you in the name of idealism to 
ask you to carry out the injunction in the terms of the Constitution 
of the United States, to give exclusive rights to creators of copyright 
property, and to say that this bill shall not go backward; that every 
step that is taken shall be a forward step. There have been no back- 
ward steps in the legislation of this country, and to-day only in the 
bills that are proposed here has there been anything which would 
make a record in the wrong direction. 

Representative Currier. We give all these forei^ers writing in a 
foreign tongue an ad interim term of two years in this bill, do we not? 

Mr. Johnson. In other words, you oflFer them something they can 
not accept. 

Representative Currier. Why not? 

Mr. Johnson. They can not acccept it because their systems of 
publication are different from ours; but whatever the sentiment con- 
nected with it, the fact remains, of what use is this manufacturing 
clause for foreign books, books of foreign origin in foreign languages! 
Of what value is that to the printei*s and to the compositors of this 

Representative Currier. They think it of great value. I am not 
familiar with it. 

Mr. JouNsoN. Yes; they do think it of ^reat value, and people are 
sometimes mistaken about the value of things to themselves. 

Let us see. I call upon the Librarian of Congress, or the register 
of copyrights, to tell us how man}" books have been copyrighted since 
1891 under the manufacturing clause by foreigners m foreign lan- 
guages. In seventeen years have there been seventeen books! Has 
there been an average of a book a year? Have there been sixteen 

The Register of Copyrights. I could not give the exact figures, 
Mr. Johnson, but I think it would be difficult to place a book a year 
of that character. Of course foreign books have been manufactured 
in this countr}^. 

Representative Legare. The clause would not do any harm, then? 

Mr. Johnson. The clause I propose would do no harm to the 
printer; and see how it would advantage him. 

Representative Legare. Well, if there is only a book a year, what 
woula this clause amount to? 

Mr. Johnson. Up to twoyears ago there was compulsory manu- 
facturing in this country. Tnat is the reason it was not taken advan- 
tage of up to two years ago. Now, we have had recently an ad 
interim clause. 

Representative Currier. I might say that the labor unions 
objected to that term, but it was said that would greatly stim- 
idate the production of books by foreign authors in writing in foreign 
tonnes in this coimtry. Has it stimulated it at all ? 

MT. Oeorge H. Putnam. It has done that. 

Representative Currier. Can vou tell me how many foreign books 
have Deen filed for copyright and, how many have been actually pro- 


duced ill this country under the manufacturing clause since we gave 
them the ad interim term? 

The Register op Copyrights. As I remember it, the ad interim 
registrations are about 1,500 at the present time, and of those 1,500 
there are some 3 or 4 foreign books reprinted. 

Representative Currier. Yes; about 1 in 500. 

The Register op Copyrights. The term being only a year, it is 
not sufficient for the translation, which is the usual point in that. 
There has been a translation of a very valuable medical book. 

Represeniative Currier. Yes; and we propose to give them two 
years in this bill. 

The Register of Copyrights. Yes. 

Mr. Johnson. I hope this side issue will not obscure the point I 
am making, namely, whatever may be the interest of the foreigner 
in taldng advantage of our copynght law, the printer has not, in 
seventeen years, obtained one oook a year^ whereas persistence in 
the present policy is going to force the pubhcation of text-books for 
South Amenca into the hands of the South Americans. 

Representative Currier. Why, Mr. Johnson? 

Mr. Johnson. Simply because you are going to compel them to 
make a manufacturing clause against us in self-defense. 

Representative Currier. Mr. Solberg, how many South Americans 
have entered? 

The Register op Copyrights. The international relations with 
South America include only a very few countries. 

Representative Currier. Have they ever copyrighted a book from 
South America? 

The Register op Copyrights. Yes; I think a few have been 
registered, but not many. 

Mr. Johnson. May I say, Mr. Currier, I think that is quite aside 
from the question. You were directing yourself to the question how 
much foreign authors are availing themselves of the Umited rights we 
are giving them. My point is not that. My point is if you ^o on 
piling up the restriction of the manufacturing clause, you are ^omg to 
comnel other countries to adoot a manufacturing clause by wiich we 
shall suffer more, because the oalance of trade would be in our favor. 
That is the point I am trying to make. Is not that an entirely sepa- 
rate and distinct consideration? 

Representative Currier. Very likely, if your premises are correct. 

Mr. Johnson. I am told there have been pubushed 800,000 copies 
of a single text-book in this country, which has be^n distributed 
through South America in the Spanish language. I will venture to 
collect statistics in regard to those things^ if the committee desires it, 
to show what is the possible trade here which might be lost to us by the 
enforcement against us, through the agreement of the various ^uth 
American Spanish-speaking countries, of a manufacturing clause. 

Representative Currier. Let me suggest what might oe done if we 
did not have it — just what has been done. Plates were made in this 
country and sent to Japan, and there the manufacture of the book was 
completed from the plates. A standard set, as I understand, of 
American school books was then sent from Japan into this coimtry, or 
the attempt was made to get them in here, to oe sold at 8 cents aoiece. 

Mr. Johnson. We are opposed to the importation of those plates. 


Mr. GsoBOS H. Putnam. If you will allow me, Mr. Johnson, Mr. 
Chirrier has a very interesting thin^ in his mind. What really hap- 
pened there was, not that anything nad been sent from here to Japan 
to be printed, but the Japanese had photographed or made photo- 
graphic facsimiles of American books and had, contrary to various 
lavrs, imported into this country, underestimating the invoices, the 
copies printed from their photo^aphic plates. It was not that 
American plates had been sent abroad and printed abroad. They 
had made photographic facsimiles. 

Re^>reseiitative Curkieb. Do you not suppose they could supply 
the bouth American market with those books? 

Mr. Oeobge H. Putnam. There is nothing to prevent them from 
doirg it. 

The Chaibman. Mr. Putnam, does not the record show that the 
plates in that particular case were sent. to Japan and were manufac- 
tured in this country? 

Mr. Geoboe H. Putnam. Nb, sir; I have stated the facts. 

The Chairman. And came to San Francisco and were held up 
there, not on account of the plates being made here, but for lack of 

Mr. Geobge H. Putnam. They were held on various grounds. 
They were undervalued, and represented American copyright mate- 
rial, and were very properly seized; but it was a practice that had 
been ^oing on in Japan for many years, the photo-lithographing of 
Amencan plates. 

The Chaibman. They were seized on the ground that it was a 
piratical edition? 

Mr. Geobge H. Putnam. Yes, sir. 

Representative Curbier. And this bill carefully guards the pub- 
lishers against anything of that kind. 

Mr. Geobge H. Putnam. I believe so. 

Mr. Johnson. With the cooperation of the Authors' League, you 
understand, Mr. Currier. 

Representative Cubbier. Yes. 

The Chaibman. If I remember right, Mr. Ogilvie or Mr. SulUvan 
was the gentleman that brought that matter to our attention. 

Mr. Ogilvie. Mr. Sullivan asked me if I knew of the piratical 

Mr. Johnson. I remember it. I hope the Chairman remembers, 
however, that we' cordially unite in the provision to prevent the 
importation of plates. Certainly Mr. Currier remembers that? 

Mr. CxjBBiEB. Yes. 

The Chaibman. I remember il. 
^ Mr. Johnson. Therefore that can not be heard against the propo- 
sition I am making, which is that now, before there is business, when 
the business is beginning, this large bulk of business with South 
America, when we are drawing together with them under this Pan- 
American convention which is here, a copy of which I have and which 
has been si^ed, but has not been ratified, that now is the time to 
make copyright laws. People have upbraided me because I have 
been acting as secretary of the American Copyright League in getting 
our law accepted abroad. I say the time to get the copyright agree- 
ments is before there is any business. Then there is nobody to 
oppose it, because it is a decent law. 


The Chaibman. Tou made the statement that you would coDect 
certain statistics in relation to the sales. 

Mr. Johnson. I will. 

The Chairman. I would like very much to have you do so, and I 
would like to have jou put it in the record, particularly for our infor- 
mation, but I beheve the workingmen of this country and other 
citizens would Uke to know. I don't believe flie workingmen would 
recommend anything that would be contrary to their interests. 

Mr. Johnson. I do not think they would, intentionally. I have 
too much respect for the workin^man's willingness to try to get what 
he thinks he ought to have. 1 respect him for it. I thiuK that if 
we were all as energetic in that, the country would be in better condi- 
tion to-day. 

However, in this matter I have a sincere belief that the working- 
man is cutting off his nose to snite his face, that he is going to come 
some time to this Congress and ask you to repeal the entire manu- 
facturing clause. When we are selling more than we are buving, it is 
to his interest to print the things we sell rather than to lose tlhe things 
we buy. Is not that a plain proposition? I challenge anybody to 
me<jt that proposition. 

Representative Currier. How long do you suppose they would go 
on making books in this country, say standfard school books, that cost 
them 50 cents here, when they could have them made in Japan for 7 

Mr. Johnson. In the first place, I do not believe they could be 
made in Japan for 7 cents. 

Representative Currier. The statement was that these school 
books that were brought in from Japan, or that they attempted to 
bring in, were invoiced at 7h cents apiece. The duty is 25 per cent, 
whicn would be less than 2 cents, making them less than 9^ cents a 
copy that they could sell them for after paying the duty. 

Mr. Johnson. What I have to say on that subject is that it is a 
subject for tariff consideration. 

Representative Currier. You would have to have almost a pro- 
hibitive tariff. 

Mr. Johnson. It is a question for the tariff. If the workingman is 
going to be protected he should be protected through the tanff. 

Representative Currier. Many oi the gentlemen want us to revise 
the tariff down as soon as possible. 

Mr. Johnson. I am speaking of the propriety of considering all 
these restrictive measures in conjunction with the copyright. We are 
here for the purpose of bestowing a right and defending a right. 

Now, I ask the indulgence of the committee a few moments for the 

Eurpose of presenting three points against which I think there can 
e no objection by anybody here. 
Representative IjAW. On this same section! 
Mr. Johnson. Not on this same section. 

Representative Law. I wish to ask if you have proposed an amend- 
ment covering the points which you have raised. 

Mr. Johnson. I nave. It is in this copy. I thought every mem- 
ber of the committee had this. It was sent to them for liieir con- 
venience by Mr. Bowker. 

^ I understand, Mr. Chairman, that the time is pretty well appor- 
tioned for to-morrow and the next day. On our behalf, Dr. Henry 


Van Dyke and Mr. Hamlin Oarland are coming down to-morrow, 
with the expectation that they might be able to speak on Saturday 
and somewhat reenforce ns. I therefore ask the mdulgence of the 
committee in presenting three points which it seems to me ought to 
be incorporated in this bill, because there is no objection to them, 
and for a reason which I can give briefly. 

In the first place, when I say there should be no backward step in 
copyrighting, I immediately come to the first backward step that 
has been taken. That is, tnat in the extension of the term of copy- 
right to life and thirty years, which we think a very honorable record 
to have been made by this committee, there is the peradventure — in 
fact the positive danger, more than a chance, the certainty — that the 
work of the last twelve years of a man's life will not be protected by 

Representative Currier. Let me suggest right there that there 
woula be a good deal of difficulty, probably, in getting through the 
House such a term as we propose, and it was suggested to us by 
friends of this long term that we would use that as an argument in 
favor of the proposition in the House, that it might shorten some 

Mr. Johnson. Does the honorable gentleman mean to tell me that 
the House of Representatives has fallen so low that in order to get 
justice from it for certain people we are obliged to tell them that there 
IS injustio-e for others? 

Representative Currier.. We do not tell them anything of the 
kind. I want to say there will be great opposition — you may realize 
it or not — to a term as long as life and thirty years — very great oppo- 
sition in the House. Opposition will undoubtedly develop, as it did 
before in the commiittee. 

Mr. George H. Putnam. Life and thirty years is shorter than the 
term of any civilized state except England and Greece. 

The Chairman. A good many countries have life and thirty years, 
so it could not be shorter. 

Representative Leg are. We are the best judges of that, however, 
as to what Congress should do. 

Mr. Johnson. I do not think I am called upon to talk of the expe- 

Representative Currier. I was not making my own suggestion. 
I was making the suggestion made by the men who are promoting this 
proposition. That was one of the arguments they suggested to me 
that could be used. It was not my suggestion. 

The Chairman. Mr. Johnson, let me ask you a question. You 
gave notice of two gentlemen being liere to-morrow. 

Mr. Johnson. Dr. Henry Van Dyke and Mr. Hamlin Garland. 

The Chairman. Are they to be heard upon these same points? 

Mr. Johnson. From the point of view oi the authors, upon the gen- 
eral principle. 

The Chairman. The question I had in my mind was whether they 
were to be heard upon tne three points you mentioned. 

Mr. Johnson. No; not on these same points. 

The Chairman. If they are, I would prefer to leave that question 
now and take up the manufacturing clause, as there are a number of 
gentlemen who wish to speak upon that point. 


Mr. Johnson. Will the committee give me five minutes to com- 
plete my statement? 

The Chairman. If that is all you want, we certainly will. 

Mr. Johnson. I beg the members of the committee not to take a 
backward step in reducing copyrights from forty-two years. Give us 
the life term and thirty years, with the alternative term of forty-two 
years, so if you are going to extend it, you will give us a practical 

Representative Currier. We had an alternative proposition in 
the bill, and we took it out at the request of the publishers, who said 
they wanted a single straight term. 

Air. Johnson. I am not here to speak for the publishers, but for 
the American Copyright League. I differ with Mr. Putnam on 
certain points. We are not here to speak as a league. Each person 
is here to speak for what he stands for. 

The second point is the copyright by a corporation. There is no 
provision in this bill for a copyright by a corporation. Half the 
copyrights of the country are neld in that way, by corporations or 
by firms. Why should not Messrs. Harper & Brothers, tor instance, 
be entitled to the same terras for copyright of something which they 
buy from the author as the author Iiunself ? I think there can be no 
possible objection to that. If there is, 1 should Uke to hear it. 

The Chairman. On the other hand, you are aware, are you not, 
that a great many men object to the granting of a copyright to a cor- 
poration, and claim that under this bill a corporation would have a 
right to over a himdred years. 

Mr. Johnson. I should certainly object to that on any such 

The Chairman. That is what many of the men here now, attorneys 
from New York and Baltimore particularly, say, that imder the pro- 
visions of tliis bill a corporation would have a cop}Tight for over a 
hundred years. 

Mr. Johnson. I favor no such thing. 

Representative Currier. What do you favor for a corporation 

Mr. Johnson. The same term as an author has. 

Representative Currier. Do you represent the authors or the 
publishers ? 

Mr. Johnson. I represent the authors. 

Roprcsontative Currier. Representing the authors, then, do jou 
not think it is in the interest of the authors to have a renewal penod? 
If you were going to give a hundred years, would you not divide that, 
giving one term, and then a renewal term? Do you not think it 
would be to the advantage of the authors, speaking solely for the 
authors, to a renewal period? 

Mr. Johnson. I have never considered that as being a matter of any 
importance one way or the other. 

Representative Currier. As I said here to-day, when you^ perhaps, 
wore not present, Mr. Samuel Clemens told me he found it of very 
great importance to him; that he sold the copyright of *' Innocents 
Abroad for a very small sum, and all he ever got out of it, practically, 
was the renewal period. 

Representative Legabb. Are you a publisher, Mr. Johnson? 

Mr. Johnson. I am a member of the Century Company, but I am 
not in the publishing department at all. I am m the editonal depart- 


ment. I am one of the associate editors of the Century Magazine. I 
approach this from the point of view of the authors. I hoki no brief 
for the publishing end of my own business. I am talking about it 
from the point of view of ordinary convenience. Take the Harper's 
Magazine. In every number there are 150 items 

Representative Legabe. What office do you hold in the American 
Copyright League? 

l^lr. Johnson. Secretary. I have been secretary for twenty years. 
I was secretary during the passage of the present law, and i have been 

Mr. Ogilvie. May I ask how many members there are of that 

Mr. Johnson. All the authors in the coimtry have been connected 
with it. 

Representative Legare. That is not answering the question. 

Mr. Ogilvie. I would like to know, if possible, how many members 
that organization has at this time. 

Mr. «K)hn80N. I do not know. It has had no meetings lately. It 
is in the hands of a coimcil of thirty. 

Representative Legare. When did you have your last meeting? 

Mr. Johnson. The last meeting of the council ? 

Representative Legare. Yes, sir; of the Authors' Copyright 

Mr. Johnson. Last week. • 

Mr. Ogilvie. Are the thirtv all there are, Mr. Johnson? 

Mr. Johnson. I would read the names, if I had them here. 

Mr. Ogilivie. Are they? You know whether the authors are all 

Mr. Johnson. There are none of the authors that are publishers, 
I think. 

Mr. Ogilvie. None at all? 

Mr. Johnson. I think none. There are James Lane Allen, 
Thomas E. Nelson, Samuel Clemens, William D. Howells, Edmund 
Clarence Stedman, president of the League 

Mr. Ogilvie. Is it not true that many men connected with it are 
also connected with publishing concerns? 

Mr. Johnson. I know none of them that are. 

Mr. Ogilvie. You are? 

Mr. Johnson. Yes; but I am not speaking from the publishers' 
point of view. 

Mr. Ogilvie. You are the Secretary? 

Mr. Johnson. I am the Secretary. I am a member of the Century 
Company. I draw dividends from that. 

Mr. Ogilvie. Very well. I wanted to get the information. 

Mr. Johnson. Yes; but I do not think you can discredit our points 
of view in any such way as that. 

Mr. Ogilvie. I am asking for information. 

Mr. Johnson. The chairman will note that I am dividing my time 
with other gentlemen. 

The Chairman. Yes; I would like Mr. Johnson to continue. 

Mr. Johnson. These are the three points — the backward step in 
cutting off twelve years of copyright 

Representative Currier. That is, you say we are taking a back- 
ward step as to the term? 

Mr. Johnson. Yes. 


Representative Cubrieb. You prefer the present term, do you, to 
the term we are {>ropK>sing to give you in the bill? Because we can 
settle that in a minute, if you say tnat is a backward step. 

Mr. Johnson. I say it is a backward step. It is not a forward 
steo, when you give us life and thirty years. 

Representative Cubbier. And at the same time insure the copy- 
rightmg of the mature work of authors. 

Mr. Johnson. Of course anyone 

Representative Cubbier. I want your position. You say that is 
a backward step. If that is your position, it will take the committee 
but a very few minutes to retrace the groimd you say they have 

Mr. Johnson. That is the responsibility of the committee, not my 

The Librarian of Conoress. May I ask Mr. Johnson « question! 

The Chairman. Certainly. 

The Librarian of Congress. Mr. Johnson, have you ever figured 
whether on the whole the authors would benefit by the term pro- 
posed, as against a flat forty-two years? 

Mr. Johnson. No, sir. 

The Librarian OF Congress. Have you ever figured it out with 
reference to any given number of cases? 

Mr. Johnson. No, sir. 

The Librarian of Congress. If that were the alternative, do you 
mean to say to the committee you would prefer the forty-two years 
rather tlian the author's life and thirty years? 

Mr. Johnson. I do not say that, biit that is not inconsistent with 
saying that in taking the splendid forward step you also take a 
backward stop. 

The Librarian of Congress. You mean to say it is not a com- 
plelo forward step? 

Mr. Johnson. It Ls not a complete forward step. 

Mr. Gkorge II. Putnam. It is a net gain. 

Mr. Johnson. It is a small net gain: but what I am pleadii^ for 
is that this coniniittoo shall not go on record as denying anybody 
part of a copyright whirh has already been given them. Is not that 
a plain proposition? 

The Chairman. Do I understand you now to say that your views 
are the views jronorally of the authors of this country'? 

Mr. Johnson. What views do you moan? 

The Chairman. Are your views the general views of the authors 
of this countrv'? 

Mr. Johnson. In roL'ard to these questions I am presenting, I think 

The Chairman. I mean as to the duration of copyright. 

Mr. Johnson. I tliink so. 

The Chairman. And you would prefer the present law as it stands 

Mr. Johnson. I have n<»t said so. No: I would not prefer it. I 
say there is a small net gain. 

Representative Ciurikk. Then do not say it is a backward step. 
D(» not charge the committee with taking a backward step if you say 
there Ls a plain gain in it. We do not want it to appear in this reconl 
that we have taken a backward step. 


The Chairman. In order that this matter may not be misunder- 
stood at all, I wish to say that if the authors do not want it and it is 
not an advantage to them in anv way, shape, or form, I will assure 
you, Mr. Johnson, I do not want it, and I will be satisfied with the law 
as it stands to-day. Personally, tf I were going to express my own 
opinion, without taking the autliors into consideration, 1 would say I 
would leave the law just as it is to-dav. 

.Representative Currier. So far as the term is concerned. 

The Chairman. So far as the term is concerned. 

Mr. Johnson. I do not think it is a question of doing anything for 
me or for the authors. 

Representative Currier. It is a question of your charging the 
committee with taking a backward step. 

Mr. Johnson. I am not individually, or even collectively, charging 
the members with it. 

Representative Currier. You are charging them with it as the 
representative of the Copyright League. 

Mr. Johnson. I say I think no backward step should be taken in 
this matter, and it seems to me that is a backward step. 

Representative Currier. We can very easily eliminate your objec- 
tion to it. 

Representative Leqare. Do you represent the Copyright League 

Mr. Johnson. I do, officially; yes, sir. 

Representative Legare. Have they passed any resolutions? 

Mr. Johnson. Yes, sir; and they have been sent to you as a Mem- 
ber of the House. 

Representative Legare. Have you a copy of the resolutions? 

Mr. Johnson. I have them at Home. 

The Chairman. It was an official act of their organization, because 
I received a copy which Mr. Johnson was kind enough to send to me. 

Mr. Johnson. Our resolutions in regard to this matter have been 
sent to every Member of Congress. 

The third point I make is with regard to the Monroe Smith amend- 
ment. Monroe Smith is a member of our coimcil and drafted an 
amendment for the extension of the copyright. 

Representative Currier. Does Mr. (Jlemens regard that as a back- 
ward step ? He comes down here and begs strongly for the term we 
have in the bill. 

Mr. Johnson. I know nothing about Mr. Clemens. 

Representative Currier. Does Edward Everett Hale consider this 
a backward step? 

Mr. Johnson. I do not think it has been considered by either one 
of those gentlemen. 

Representative Currier. Mr. Clemens is a member of your execu- 
tive coimcil ? 

Mr. Johnson. Yes; and he has been away for a long time. 

Representative Currier. He has not expressed any approval of 
this suggestion you make, has he? 

Mr. Johnson. I do not think it is necessary that he should express 
any approval of it. It is an evident matter that if the last twelve 
years of a man's life work, including his most mature work, may be 
excluded from copyright, it is, on t^t side, less than what he is ^t- 
ting now. I do not tnink there is not an advantage on the other side. 
I have always spoken in commendation of the coixixcL\\Xi^\Q>\ >(X>aX. 

8&207— 08 6 


TKe Chairman. That would be virtually about one chance in a 
thousand, would it not? 

Mr. Johnson. I think the last twelve years of a man's work is 
likely to be mature work. Suppose he dies at 50. That leaves his 
work from 38 to 40. I will xmdertake to prepare a statement of the 
authors who died, and what works they have done in the last twelve 
years of their lives. 

The Chairman. Proceed with your other point as quickly as pos- 

Mr. Johnson. The other one is simply to say that we favor what is 
called the Monroe Smith amendment, which was presented at the last 
hearing, and which is a matter that would seem to lie between the 
authors and the publishers, namely, that in any renewals of copyright 
to living persons where contracts are still in existence, that where 
there is copyright, a royalty, it may be made on the application of the 
author alone, but where there has been a downright payment, in that 
case the publisher must join with the author in order lo set renewal. 

That is the only other point I wish to make. I thaii you, gentle- 


. Mr. Feeney. Mr. Chairman and members of the committee, I am 
here representing the International Brotherhood of Bookbinders. I 
am also president of the Local Bookbinders' Union and chairman of 
the legislative committee of the Central Labor Union of this citv. 

1 want to say, at the outset, that my remarks will be very orief. 
I am here simply to indorse the manuiacturing clause in the copy- 
right bill and to thank the gentlemen of the committee, on behalf of 
my organization, for inserting that clause. 

Our bookbinders throughout the United States have suffered for 
years on account of the loose way in which the copyright laws have 
been executed, especially in regard to the matter that the chairman 
has just spoken oi, where the plates were made and the type set up 
in this country, the plates shipped into Japan, the books bound by 
cheap Japanese labor, and sent to this country, and the children of 
American workmen were compelled to use those books in our schools, 
while American bookbinders walked the streets looking for work. 
That has been the position. That has been the evidence given here, 
and I claim that that law can not be too strict to protect our workmen. 

Regarding the remarks of Mr. Putnam this morning, I was not here 
at the time they were made. I understand he wants a change made 
in that law permitting him to send books to Europe to be bound. I 
understand ne refers to what we call art bookbinding. A few years 
a^o I spent a few months in London and a few months in raris, 
visiting the different binderies in both those cities. I want to say 
they do very fine work over there, but they pay their workmen prac- 
tically nothing. From 15 to 30 shillings a week is the wages paid. 

Mr. (iKORCJE II. Putnam. Not for artistic binding? 

Mr. Feeney. For artistic binding, 32 shillings a week is the mini- 
mum scale in I^ndon. I visited the Woman's Guild at Hampstead. 

Mr. George II. Putnam. What is the maximum scale? 


Mr. Feeney. The maximum scale goes a little further. It may 
go as high as 40 shillings. 

Mr. Georoe H. Putnam. We sometimes pay as much as $50 for 
a single book^ for art work. 

Mr. Feeney. They sometimes pay as high as $100. I saw a set 
for J. Pierpont Morgan in the Woman's Guild in London. Those 
little girls were getting from 10 to 15 shillings a week for high-class 
work that over here the American workman would get from $20 to 
$30 per week for. We have art bookbinders in New York City and 
in Chicago, and we bind our work just as good as was ever bound up 
in London or Paris. It is simply a matter of dollars. Those art 
books are merely gathered up by connoisseurs. It is a fad among 
the rich men of New York and other cities to gather those handsome 
boimd books; but I want to tell Mr. Putnam that it is not necessary 
to send to England to have books bound there in the art style. 
They can bind them here in the cheap cloth binders and send them 
over. I admit there are very few editions bound up. They are 
mostly what we call sets. They generally take a set of Dickens or 
any other great author, tear off the cloth covers, and bind them up 
in this fancy leather with what we call fine tool work. Our American 
workmen can not compete in wages, but they can compete in skill. 
There is no work in the binding Tine, and I will take tne liberty of 
saying for the printers there is no work in the printing line, aone 
on the other sicle- that we can not do here, even to foreign languages. 

Representative Currier. Mr. Feeney, let me ask you a question: 
If some gentleman desires to have boolis bound in Paris or in London, 
he can send them over there in cheap binding and have that removed, 
can he not, without any difficulty ? 

Mr. Feeney. I will state that they can bind even in paper. There 
are three classes of binding — leather binding, cloth binding, and paper 
binding. We consider a book bound when it is sewed and any kind 
of binciing put on it, whether cloth, paper, or leather. . A large num- 
ber of books are sold in the stores with common binding, cloth bind- 
ing, and they can send them over. If they want to send a set over 
there, that does not interfere with the cop3Tight at all. They can 
send the sheets over. They can get them put up in cheap covers at 
very Uttle expense and senS them to the otJier side. 

Kepresentative Currier. Is there any trouble in sending them over 
with the leaves uncut? 

Mr. Feeney. Would not that invalidate the copyright there? 

Representative Currier. But I mean you can leave them uncut 
just as well. 

Mr. Feeney. Just the same as having them cut. One reason they 
are sent abroad, to the other side, is that they can get them bound up 
by very cheap labor, in the city of London, although they have not 
very good conditions there. They do not have beef two or three 
times a day. I believe they have tea there about 3 o^clock in the 
afternoon in a bindery that 1 was in. But I was really surprised at 
the w(^ges. We could not live in this country on the wages. In fact, 
our Uving expenses, as you all know, are rather high in the big cities. 
Our average wage in the cities run from $18 to $21 a week, and tliat 
is not too much for an American workman to receive, especially for 
skilled work. 


I want to claim, in closing, that my organization is heartily in 
favor of the manufacture clause, and we want it as it stands to-day 
without amendnient. I read it over carefully. I can not see how 
we can amend it in any way, and we want thJe protection we should 
have had years ago. 

Representative JLaw. Do you approve of the amendment suggested 
by the representative of the Music Engravers' Union? 

Mr. Feeney. What is that amendment? 

Representative Law. In reference to music engraving in this coun- 

Mr. Feeney. I am here simply, as the representative of the book- 
binders, and I do not want to speak for any other craft but my own. 

Representative Law. You do not oppose it? 

Mr. Feeney. No; I do not oppose it. As members of organized 
labor, we stand together, and anything that pleases the engravers 
pleases me. 


The Chairman. Mr. Geoi^e W. Ogilvie, of Chicago, is here. He 
is compelled to leave to-morrow for Chicago and would like 
heard to-niglit. 

Mr. George H. Putnam. Maj I ask, Mr. Chairman, whom Mr. 
Ogilvie represents; what organization? 

The Chairman. We will have him state what organization he rep- 
resents. Will you kindly state whom you represent, Mr. Ogilvie? 

Mr. Ogilvie. George W. Ogilvie, publisher, Chicago. 

Mr. George H. Putnam. It is not an organization, then, Mr. 

Mr. Ogilvie. I am not a member of your organization, Mr. Put- 

Mr. George H. Putnam. I am asking for the name of your organ- 

Mr. Ogilvie. I am not a member of an organization. I represent 
mvself, and incidentally I would like to represent an author or two 
who do not appear to be represented here. 

The Chairman. That is, you mean a class of authors? 

Mr. Ogilvie. A class of authors. 

First, in reference to the notice required by the proposed bill being 
only on copies published and offered for sale in the United States by 
the autlionty or the copyright proprietor. 

The Chairman. What page is that? 

Mr. OcJiLViE. I was depending upon the same thing Mr. Putnam 
was depi»nding upon this mommg, the Publishers' Weeklv. Since 
then I find the PubHshers' Weekly is not altogether reliable in that 
respect, and I would like to ask the gentlemen who advocate the 
including of that particular provision how it is possible for any 
man on earth to tell whether a book that is offered for sale in the 
United States is offered for sale by the authority of the copyright 
proprietor. It is utterly impossible, and a notice only on such 
coj i(^s will leave open the question as to whether a book is copyright td 
or not. 

The Chairman. Mr. Ogilvie, the bill requires that notice shall be 
affixed to each copy. 


Mr. Ogilvie. Only those oflfered for sale in the United States by 
the authority of the copyright proprietor. Now, to illustrate. The 
Supreme Court, on the 3d of February, rendered a decision upholding 
a copyright on a book in reference to which I communicated with 
the copyright office and was informed that the indexes of that office 
showed no copyright entry. Only one of the five conditions imposed 
upon American copyright owners had been compUed with in respect 
to that book. That was that the type had been set in the Umted 
States; and my friend here, Mr. Hale, was the man who opposed us 
and won the case. He is, entitled to great credit. Any man who 
can win a case of that kind is entitled to great credit. 

The Chairman. Did you say that was a decision of the Supreme 

Mr. Ogilvie. That was a decision of the Supreme Court. The 
condition was that the type had been set within the United States. 
No appUcation for a copyright for that particular book under the 
title under which it was published had ever been made. No copies 
had ever been filed. The copyright notice was eUminated, as a matter 
of contract, and no titles were ever filed in the United States copy- 
right office. Acting on the information which I got from the copy- 
right office, I proceeded and fought that case through to the United 
States Supreme Court and lost. My investment is gone. The capital 
of the corporation which was formed for the purpose of publisning 
that book nas been entirely dissipated^ and I, individually, when the 
capital was dissipated, took up the neht at an expense, as it now 
develops, of $1,500. For what? Simply because the Supreme Court 
has upneld a copyright on a book that was published without a copy- 
right notice. 

Mr. George H. Putnam. PubHshed in London. 

Mr. Ogilvie. It doesn^t make any difference where it was pub- 
lished. No dictionary of the Engush lan^age defines the word 
'* publish'' as confined exclusively to the limits of the United States. 

Mr. George H. Putnam. May I ask the name of that case? 

Mr. Ogilvie. Yes; G. C. Merriam & Co. v. The United Dictionary 

It IS essential for the protection of gentlemen who publish books 
such as dictionaries and like works that every book published on 
which there is an American copyright shall contain tne copyright 
notice; otherwise books will come into this country. There are four 
ways provided in both the Smoot and Currier bills whereby books 
can be brought into the United States on which copyright exists, and 
under the law it is not obligatory to give a copyright notice. Those 
books will go into libraries and be referred to and extracts made from 
them, with the result that some fine day the owner of the copyright 
will come along and compel the owner of the set of plates from which 
had been made the compilation, to destroy his entire work and waste 
his entire investment. The elimination of the American copyright 
notice is merely a stop. 

The Chairman. I have that decision here, Mr. Ogilvie. This was 
an English publication. 

Mr. Ogilvie. No, sir; it was an American copyright publication, 
the plates of which were sent abroad and printea in England, and as 
a matter of contract the American copyright notice was eliminated. 


The Chairman. The appellant was an Illinois corporation. That 
is the one you speak of? 
Mr. Ogilvie. i es, sir. 
The Chairman (reading) : 

The appellant, an Illinois corporation, sent for the English book with intent to 
reprint it, and was about to publish it when restrained. 

Mr. Ogilvie. "With intent to reprint it." That is merelj" the 
statement of the court. 

The Chairman. I am reading the statement of the Supreme Court. 

Mr. Ogilvie. But we could not know until we got that book. The 
Supreme Court is not always right. 

The Chairman. It says: 

The English publishers agreed not to import any copies of their work into this 
country and also to use all reasonable means to prevent an importation by others, so 
that the appellee cau not be said to have consented to the appellant's act. So to ae 
appears, the only copies that have been brought over are the ones above mentioned 
and another purchased for use, but not for sale, by the president and manager of the 

Mr. Ogilvie. Yes, sir; that is what the Supreme Court says, and I 
also have the decision here, and I will read another portion of it. 

The appellee makes a strong ai]gument that the appellant's importation was wrone; 
but it i^ nard to see how the right to copy a book, either lawfully or unlawfully 
imported, can be affected by the mode in which it got here. 

Then the Supreme Court, in finishing, said : 

We are satisfied that the statute does not require notice of the American copyright 
on books published abroad and sold only for use there. 

Of which mental attitude the American public has no notice and 
absolutely no means of ascertaining. 
The Chairman. But the Supreme Court goes on further and says: 

We agree with the parties that it is unne(*es8arv to discuss nice questions as to 
when a foiei^ repiint may or may not be imported into the United States under the 
present provisions of our law. 

Mr. Ogilvie. But that particular portion of it refers to a reference 
in our brief as to whether a piratical edition might be imported. It 
does not refer to this particular book. 

However, that is beside the question. What I desire to have done 
is this: In speaking as a publisher, I mav also say that I am speakinjz 
not only for myself but tor other publisners, in that I probably shall 
never publish another book. I have recently been disposing of por- 
tions of my business. Another portion is for sale, and I intend to 
confine my operations entirely to certain books, the plates of which I 
now have. 1 am attempting, if possible, to prevent the trouble for 
other publishers into which our corporation ^ot. It is a long story. 
Whether we got into it with knowledge or without is of no moment. 
The book was there. 

The Chairman. Mr. Ogilvie, what suggestion have you to offer 
in relation to that noticed ^ 

Mr. Ogilvie. That the notice shall go in every copy of every edi- 
tion published, wherever published. 

The Chairman. In a foreign country or in this country? 

Mr. 0(}iLViE. Anywhere on earth. 

Representative Currier. Would you forfeit for the accidental 
omission in a single copy? 


Mr. Ogilvie. No, sir; we have had that out before. Mr. Currier. 

Representative Cubrier. All right. You stand oy that provi- 
sion still? 

Mr. George H. Putnam. Mr. Chairman, will you give me time 
to-morrow to speak in reference to that? It is a very important 
provision. I should like five minutes to-morrow. 

The Chairman. Certainly. 

Mr. Ogilvie. I would like, if Mr. Putnam is going to say any- 
thing about my remarks, to have him say them now, because after I 
left nere in June last, or in December, Mr. Putnam made some 
statements with reference to remarks I had made which were not 

The Chairman. Mr. Ogilvie, you go right on now, and then Mr. 
Putnam can replv. » 

Mr. Ogilvie. 1 think every publisher in the United States who 
desires to be fair to his fellow publishers will agree with me that the 
only way that a man can tell whether a book is copyrighted or not 
is to have it contain a notice. If not, leave it out of all of them. 
Leave it out of every book published. Do not put any notice in at 
all, and make it go to the copyright office to get the information; 
but do not leave him "up in the air," as he will be left, some books 
with a notice and others without. How does he know? If a book 
is published under various titles and not filed in the copyright office, 
he can not find out, and if he can not find out and he take^ extracts 
from the books that are not published it might bankrupt him. It 
will not bankrupt me, because I do not intend to publisn any more 
books, piiaughter.] 

I suggest where a book is published under a title varying from the 
one it originally had, it shall be obligatory upon the owner of the 
copyright to file in the copyright office a copy of such book, and if 
necessary charge a fee for tne filing of that for the purpose of enter- 
ing under the original entry and having a cross entry, so that one can 
get some information. As it is now, it is utterly impossible. You 
can not get anv information in reference to it. 

One of my niends, Mr. Johnson or Mr. Putnam, I have forgotten 
which one — I think it was Mr. Putnam — spoke in regard to the 
obligation we were under to foreigners. The obligation we are under 
to foreigners in regard to the notice is exemplified by the decision 
in the English courts. The English law does not require the inser- 
tion of a copyright notice on books. It does, however, require the 
insertion of notice of reservation of public performance on copy- 
right. A recent decision in England held that a copyright was 
invalid because it was an international copyright, and tne owner of 
the copyright, a foreigner, had attempted to comply with the re- 
quirement as he understood it, in that he inserted the notice in a 
foreign, language. The court held that was not a notice to English- 
men, whose rights were being protected, and that the copjTight was 
not a valid copyright. Now, what would happen to a man if he 
went to England and attempted to enforce a copyright which was 
not obtained and lived up to in conipliance wiia the English law! 
He would not have a copyright. Wnat happens to him when he 
comes here? Under that Supreme Court clecision an Englishman 
can do just exactly as he pleases outside of our country and ccme 


here and use our courts to maintain rights that we, as American 
citizens, do not possess ourselves. It is based on the American 
copyright notice, and we ought to have it on every copy, wherever 
it may be. What do these gentlemen want to leave it on fori What 
are they afraid of, I would like to know? 

The Chaibman. Mr. Putnam will tell vou in a little while. 

Mr. Ogilvie. I hope he will. [Laughter.] Mr. Putnam's infor- 
mation, some of which he gave you this morning, was very interesting 
to me. Mr. Putnam said that he published an edition of 5,000 books, 
and he trimmed them all. They were all this and that. He led you 
to believe it was impossible to find a book untrimmed and send it 
abroad. What on earth is there to prevent anybody who knows 
anything about manufacturing books — and he claims to be an expert 
in the flatter: printer, binder, publisher, member of the Authors' 
Copyright league, and several other things — folding up ten copies 
of a book, sewing it, if necessarv, by hand, so that the book will not 
be damaged in any way and will not interfere with rebindin^, putting 
a paper cover around it, and sending it abroad, and lettmg them 
rebind it there? Nothing in the world, and yet Mr. Putnam took 
almost ten minutes of your time telling you that it was impossible to 
do such a thing. 

In reference to the affidavit section, I was going to say that I 
thought this was a copyright conference, but Mr. Currier's remark 
to Mr. Johnson almost maKes me hesitate. I am inclined to think, 
however, that this is a conference for the purpose of relieving gentle- 
men who willfully commit perjury from the proper punishment for 
their crime. The bill reads: 

PiibliHbers who willfully make an affidavit for the purpose of producing a copyright 
in the United States shall be guilty of a misdemeanor and fined not to exceed $1,(N0. 

I think a few stripes would look well on that sort of a gentleman. 
I do not see any reason why a man who pirates a book should go to 
the penitentiary and a man who commits perjury should stand out- 
side and laugh at him. It seems to me it the affidavit clause is to 
be included at all it would be well to make the punishment fit the 
crime, as my friend Mr. Sulzer said this morning. 

In reference to the question of renewals of copyrights, I took the 

gosition som? time ago in reference to this matter that made Mr. 
urrier ask me if I was a publisher. I told him I was. He rephed 
I was talking against my own interests. Apparently I was, but 
there was a little conscience mixed up in the matter. 

I can see no reason, as a publisher, why I should be given an 
equitable interest in a copyright book for the production of which I 
have not paid a single penny. It is not an unusual thing in the book 
trade for authors who are comparatively unknown to pay for the 
cost of producing their first book— not merely the plates, but the entire 
edition; and should it prove a success in twenty-eight years, the gen- 
tleman who made a very favorable contract wjth that author then 
says to him, ''Well, Mr. Smith, you can not get a copyright unless 
you permit me to continue to publish vour book, and as it was your 
first book I did not pay you any royafty on it, or I paid you a very 
small sum." 

Mr. Smith may be dead, or his widow may be dependent entirely 
on the sale of his books. Why should she not be given the opportu- 
nity to make a few thousand dollars more out of the pubUsher on 


the product of the brain whose work he pubUshed without any cost 
to himself? 

The publisher will say, "Well, it was our acumen that made it 
possible for him to become the author of one of the six best sellers/' 
Possibly that had something to do with it, but if it is true, why not 
hire a hack writer at SIO a story and let him take the place of the 
author's brain in every instance! Why pay him any royalty at all? 
One of the gentlemen who favors this particular law, a music man in 
Chicago, connected with Lyon & Healey, when I told liim it was rather 
strange that none of the so-called piratical publishers had been invited 
to any of the conferences, said, "When a man has a feast, he does not 
invite a lot of second-story men." Second-story men! Why, the 
man who formulated that means of swindling an author or his widow 
has not the courage to be a second-story man. He wants a ground- 
floor proposition every time, and will take absolutely no chances on 
it. It is iniquitous. It ^ould never be enacted into a law; and I 
am surprised that Mr. Johnson, a gentleman connected with the 
Century Company, and claiming to represent thirty authors — who, 
by the bye, make as much noise almost as the 750,000 people who 
attended the Chicago day at the World's Fair — should come here 
and advocate any such provision in a copyright law. I do not say 
that he, individually, or that the Century Company, or that my friend 
^T. Putnam, would take advantage of an autnor, but there are men 
who would do it. Some of them may live in Chicago. I do not 
know. Certainly some of them do live in New York, and they ought 
not to be given the opportxmity to do any such thing as that under 
any form of law, copyright or anything else. 

, To summarize, I strongly urge that every copy of every American 
copyright book contain a copyright notice and tnat the renewals shall 
be the property of the author. What about the author's constitu- 
tional nght? Is it not taking away from him the right of contract? 
I think it is. I am not a constitutional lawyer. I do not know very 
much law, but I have an idea or two about the pubUsher's business. 
Mr. Johnson said he beUeved the American worlangman was cutting 
off his nose to spite his face, but in this proposed renewal business he 
does not cut off nis ngse. He cuts off his head. He does not ^ve him 
a chance to live at all. I do not think it is fair or proper, and I do not 
believe tliis committee will advocate putting in the proposed copy- 
right law any such conditions. 


Mr. Putnam. I will try and give a very few words to the points 
more particularly that have not been touched upon to-day in regard 
to that matter, and that is the most urgent matter that has oeen 
raised by the gentleman who has just spoken, who told us very 
frankly he spoke onty for himse'f . 

. You gentlemen are our lawmakers, and, as we who are interested in 
this very troublesome subject of copyrights know, you are conscien- 
tious lawmakers. You are lawmakers tor the United States and for 
the dependencies under the control of the United States. I do o^t 
assume you would undertake to make law that should be held to apply 
to any people, citizens, or residents; or others who are not subject to 
the laws of the United Stat^. 


It really needs very few words. The thing was discussed fourteen 
months ago in our previous hearing, and we pointed out that if you 
should put in an American copyrignt law the requirement that every 
copy pnnted, whether it might be in England or AustraUa or Kam- 
chatka, irrespective of those pubhshed m this country, must bear 
that notice of entry of copyright, or faihng that, that there should 
be a forfeiture of copyright, you would undertake to compel people 
who are under no penalty if they obey the United States law to do 
something which if they did not do it would not bring any penalty 
upon them, but would forfeit a copyright, a propertv belonging to 
the American citizen, the author, and a property in which the Amer- 
ican manufacturer, tne publisher, had a joint interest, v 

That is the theory of the thing, and I think is the theory which to 
you experienced lawmakers is conclusive. You can not undertake 
to order a man in Australia to do a thing on penalty of doing which a 
group of American citizens should lose tneir property. 

As to the detail of the enforcement of it, I can say, with forty-four 

? ears' experience as a publisher, that it is a regulation that can not 
e enforced. However strictly we might make arrangements on 
behalf of others, acting with foreign publishers, acting sometimes in 
Great Britain, sometimes throughout the whole continent, or in the 
colonies, for tnis particular detail to be carried out of the printing of 
a copyright notice in the back or title page of such book, tnere would 
be not only no possibility but no practicability of that being carried 
out to any extent. During the working of the present statute we 
have made such contracts with honorable English pubUshers that 
the requirements of the American law in this detail should be com- 
pUed with. They have to some extent succeeded in getting those 
instructions carried out by printers. They have been carried out in 
London. They have failed to get them carried out by printers work- 
ing in Australia, because they sell the right for a subsidiary^ edition 
to DC published in Australia, and the farther away you get tfiis atten- 
uation of the original contract obligation, the greater, not the reason 
but the certainty, that it will not be carried out. 

Representative Currier. You favor the bill as it ia? 

Mr. George H. Putnam. I favor the bill as it is. We have had 
examples in this country of copies brought in; in one case from Aus- 
tralia, some sixteen years back, of a book printed in Melbourne, which 
did not contain the notice of American copyright. There was some 
question as to how the present law couhVbe interpreted, and the 
courts decided that the intention of the existing statute, while it was 
not clearly worded, was evrilent that the lawmakers could only have 
undertaken to make laws for the people of the United States. In 
case that should be so left, if the innocent importer, the man who 
might possibly find the book in a library did suffer, that would entail 
much smaller risk than the certainty of injustice to the great group of 
American authors and those who have interests connected with 
American authorship. I am speaking of a chance importation. I 
am not sneaking of tne case where books have been imported from the 
other sicle for the purpose of making an unauthorized edition here. 
It is that kind of a case that the Supreme Court has recently passed 

The other matters having been referred to, gentlemen, I will merelv 
speak of them as they were reshaped somewhat in Mr. Oeilvie's word- 
ing. He gave you a mythical case of an author who might have paid 


the entire cost of the production of his book, where he or his widow 
or children after him might fail, on the ground of some requirement 
for a joint application for this renewal of Copyright, to secure the 
benefit of such renewal. Mr. Ogilvie, with his experience as a pub- 
lisher, should know that when an author pays for his book he owns 
the copyright as well as the book. 

Representative Currier. You said author. You mean publisher, 

Mr. George H. Pxjtnam. Possibly, but I think I meant author. 
The clause as arrived at not only by one of the representative authors, 
but bv the authors and publishers, talking together in New York ancl 
elsewnere, for that extension of copyright, made it quite clear that 
where. the ownership of the copyright, the royalty, had been pre- 
served by the author himself, wnich is the case, say, nineteen times 
out of twenty, the author alone should have the full advantage of the 
extension of copyright, the full right to exclude the original publisher 
from any further publishing of the book after the first term of copy- 
right had terminated, although such possible exclusion of the first 
publisher would involve the risk of the forfeiture of large investments 
m electrotype plates and in publishing appliances which have been 
built up at great expense and long years oi labor. 

The authors and publishers, in tneir desire to meet this very natural 
requirement on the part of the authors, were prepared to risk that 
provision being canceled altogether, as it would be canceled if the 
author decided at the expiration of the term of agreement to make 
an agreement with another publisher. The only reservation that 
the authors assented to very lully — Mr. Jolinson is not speaking in- 
dividually, but represents the consensus of opinion of all the authors 
back of mm and all the authors represented by our association, some 
thousands of authors — was made in the case where the copyright 
had been sold outright. 

Representative Carrier. You say you are willing, where the au- 
thor nas reserved a royalty, to provide that if the book has lived 
through the forty-two years, then he is perfectly free to make any 
contract he pleases? 

Mr. George H. Putnam. Yes, sir. 

Representative Currier. But only the author who has sold his 
copyright outright to the publisher? 

Mr. George H. Putnam. That is the second class. You have 
named the first class. 

Representative Currier. Now, the author who has profited the 
most from a popular book must be the man who has had the royaltv 
all the time, and the man who has profited the least from a dook 
popular enough to have lived for forty-two years must be the man 
who has sold his copyright outright? 

Mr. George H. Putnam. That is true with certain books, but not 
with the majority of books. I have in my basement books for which 
I have purchased the copyrights at what the author thought to be the 
market value which have turned out to be a lai^e loss. 

Representative Currier. That is ordinarily the case of a book of 
which anybody would want the renewal ? 

Mr. George H. Putnam. That is true. The Innocents Abroad is 
one case in a hundred thousand. There are such books, and I admit 
there would be such cases: but the property I have in mind more par- 
ticularly, the property which would be confiscated without considera- 
tion — I could liardly say without due process of law, if you gentlemen 


iiiiiko tho law so about it, but it would be without due. equitable 
pniccss of law — would be more particularly, as I pointed out, the 
irivivstiiionl in composite works, which form ninety-nine one-hun- 
dnnltliH, 1 should say, of works having any continuous value what- 
Hoover, of the class where the purchase is made outright; and to have 
thoHc copyrights provided and to have the publisher thrown out by 
cxduHioii not merely from having an open market, but forbidden to 
w^ll at nil if this copyright were renewecl, and if he did not succeed in 
inakiii^ Mrraii^'tMncn'ts with his several hundred authors 

|{cprcHt*utativo Oitrrirr. I think in the case of a composite work 
I ho point you nutkc presents a very strong case for the consideration 
itt tho commit tee. 

Mr. (iKoiioK II. Putnam. There are millions of dollars invested 
in huch workN whicli, if this law is worded as you two gentlemen 
liHve wonlnl it, iiiNtead of the change as Mr. Kittredge accepted it 
licforo, would he Nuhject to confiscation. That represents American 
inanufiirtuicrh' \vi»rk. publishers* interests. 

Kepifficntative (JtudciKK. Ah I have it in mind, I should very 
quirklv dual with your tiropoNit ion where you touch composite works, 
wIk'M' you hiive tii dciil with a hundred authors. 

Mf nMHMif. II. I'l'TNAM. The Imiocents Abroad case is a very 
i/iiod illuolnilMMi The instance is with vour contention. 

Iliwiii'hi'iil alive (iMiiiif.u. What you nave said in regard to the 
i;oiiMio.iiht woikn iippeiiln vcrv Htronglv to me 

Ml (jMiiioi'. II J'l INAM. That is the real class, su*. 

|f« iHi.ii nhillvr i'l'iniiKii. Have you formulated an amendment? 

Ml liif.MiMiif. II I't INAM. I willattempt to do that, to make that 

lIl.tlilM Moll X xU- X- * xl. 

I ilo hol Ihlnh I need to delay you at this time of the evening 

Hill. III.. UinUi'i ii'imiikH ,1. • • 11 * 1 

Ml II ^1^ M» riiiiiiiniin, I Hin down here pnncipally to speak 

III. f. Ill II. "I M Ml ^* ill |»»ovii.ioii, hut as the hour is late, 1 would like to 

liiii III mn'ii II ''• II'""**** , , 1 . 

1 1,1 I n s M'*i ^ •• I »•' "' ** •" '»*• '^ K*'"*' '"*"y ^^^^^ thmgs to-morrow. 

^.Hi' I l"H" "I""'* '"* n '»"w. 


.. H,,. , Hiiiii'Mii Ihr Ainericiin Law BookCompany, which 

h h. 


Li. II 411 I (MiH'MM.I III'- AHMTKHfi JiSW iJOOK ^.ompany, wiucn 
II 1.1 I. !».» |Mi.v<l"|"''''» "' I^awand Procedure, a lejjal 
' " I," '''Vii, I, .. U, Ui-vulum-H, «.f which some 25 are p«b- 
•', '"'"»•"",;" ,;,.„.,,„.M.I M. piolmhly $1,000,000 in Uiat one 
"l \'C „| . (.hMi.I. .l..iM.nMi»-« «i|;l works of suTular character. 

/,,, , I, (..I<.l l.v pnl.liHhcrs, by an employer who 

V I , .1 ..,,il,.,i. \n Mil*' those books. In such case 

>* li '1 '''!'''•'',, ,1 .i.HM.nM..the«uthoroft.ho8eworks. 

. ,1, •■•'■<;';■;•*, ,, ,,,„„, H.«rHrtor. Take the Century 

^ . "Vii'i ;* rl IM .. "• " '^^ "f *h« Kittredge bill, the 

H^ ' '"' '" I » ...|.l<- i»u,-tu\uu'nt which. I think, carries 

., ;» V " I . V ..... L- ..^.n-sM-l. Section 24, pro^nding 

' ' "r .1.' .,. . . ll'"-.' HHRS08. (a), (b) and c) ! 

\.,V. ., " " „;t., - " '-'OoftWKittredeebil. after 

• * r'X::XX '.,...l...di«««cUon24,8uWct.on(c) 




In other words, if you insert that in the renewal clause, then only 
the works specified in section (c) may be renewed by the author. 
That would absolutely meet the objection, so far as all the compiled 
works are concerned. It would unmistakably teclude them from 
this extension. 

That is my suggestion. I think that would be a very simple solu- 
tion, to expressly exclude them from the right of renewal. 

Representative Currier. It does seem to the committee that sub- 
section (b) takes care of the thing pretty effectually. It wipes out 
the renewal period of fourteen years after the twenty-eight. 

Mr. Hale. That is, under section 24, as a whole, there is no renewal 
for copyrights obtained under this act; but as to existing copyrights, 
they may DC extended for the full term provided by the act, and then 
it speaks of authors. These ioint authors of composite works have 
always been treated by publishers as having the rigiit of renewal, and 
those books have always been renewed by virtue of the right of the 
authors, the men who compiled them. That is the only way under 
the present law that a proprietor can get the renewal term. The con- 
tract covers it usually, but they get it from the author. 

Representative Currier. In the case of a composite work, does 
not the contract always cover the renewal period? Would you think 
anybody would employ a whole lot of authors to create a composite 
work and not, by contract, provide for the renewal period? 

Mr. Hale. But it is only possible to cover the right of renewal of 
the actual author. The right of renewal is contingent. It does not 
vest until the end. If he is aUve at the time of renewal, then the orig- 
inal contract may pass it, but his widow or children or other persons 
entitled would not be bound by that contract. 

So I think the simple way would be to expressly exclude that class 
of works from the right of renewal. 

Then there is one other point in this connection. I am speaking on 
the Elittredge bill now, which has a provision for the joinder of the 
assignee or licensee with the author in certain cases. I have no objec- 
tion to that. I favor it, although the interests I particularly repre- 
sent would be satisfied with the other part. 

Representative Currier. So far as the interests that j'^ou repre- 
sent are concerned, they do not care to have that made general, out 
simply to applv to composite works? 

Mr. Hale. &mply to apply to composite works. 

Representative Currier. Let me ask you, as representing pub- 
lishers of that kind, whether you prefer the old term or the term 
given in this bill ? 

Mr. Hale. We would prefer a straight-out cop3night for the term 
given by this act, speaking only for my own clients. 

Now, addressing myself to the provision of the Kittredge bill wliich 
provides for the joinder of assignee or licensee under certain circum- 
stances, there is another case that falls within the intent of that, but 
is not within the letter. That is the case of a copyright taken out by 
a proprietor. The proprietor becomes such before tnere is any copy- 
right. He is neither an assignee nor a licensee of the copyright. 
The assignee and the licensee are the only persons spoken of in this 
section ; so I think that should be amended by the insertion of words 
so as to include the proprietor, provided the clause is adopted at all. 


I think there is no dispute about it. He would be excluded by the 
letter of the act, although it is plainly within the intent. 

We consider it of great importance to composite works that that 
matter be made perfectly definite and clear. 

• There is another verbal criticism I should like to make in section 
6 of the Kittredge bill, which also relates to compilations, abridg- 
ments, etc. 

The Chairman. I think it is the same in the other bills. 

Mr. Hale. Yes; it is the same in all the bills. I heartily agree 
with and am in favor of that section; but in line 12, in lie* of the 
words * 'but no such copyright shall effect the force or validity," etc., I 
would prefer to substitute these words: '*and the publication of any 
^uch new work shall not affect the copyright," etc. 

That is to meet this situation. It is the publication of a book with- 
out copyright protection that forfeits the copyright, or the publication 
of a book without proper notice, or anything of that kind. Under the 
act, as it stands now, it says the copyright snail not affect it. I would 
like to meet the case of a new compil^ work, within the meaning of 
this clause, that is not copyrighted, or where, by reason of some acci- 
dent the copyright fails. That should not affect the original copy- 
rights in the works that have entered into and formed a part of this 
new compiled work. It does not change the intent of the section in 
any way. 


Mr. Ogilvie. Mr. Chairman, Mr. Putnam spoke with reference to 
the notice and the impossibility of securing its insertion. If he has 
any trouble of that kind, let him set the title page for the book which 
he intends to publish abroad with the copyright notice, send the plate 
with the contract, and require that that plate be used in every cony 
published or, in case it is smashed in printing, that a duplicate be 
sent. That will cover the objection. 

In reference to the ownership of a copyright of a book, the cost of 

f)roducing which has been paid for by tne publisher, perhaps not the 
ast but among the last books that I have published was such a book. 
The copyright stands in my name, and that is not unusual. It is not 
mythical by any means. It is a fact. 

The committee thereupon adjourned until Friday, March 27, 
1908, at 10 o'clock a. m. 

Washington, D. C, Friday, March *7, 1908. 

The Committee on Patents of the House of Representatives and 
the Committee on Patents of the Senate met conjointly at 10 o'clock 
a. m. at the Senate reading room. Library of Congress. 

Present: Senators Smoot (chairman) and Brandegee; Representa- 
tives (-urrier, Barchfeld, Washburn, Law, Sulzer, Legare, Pratt, and 

The Chairman. Mr. Johnson desires to make a statement and also 
to present arguments to be inserted in the record. The committee 
will be glad to hear hinL 



Mr. Johnson. Mr. Chairman, it is often said in opposition to 
criticisms of a measure that the critics do not present their views in a 
definite and technical form, so that they can be thoroughly and 
entirely understood. I have the honor to present to the committee 
a draft of a proposed copyright bill which I hold in my hand, the 
text of which has been compiled with the additions desired by the 
American Copyright League and with some omissions, all carefully 
collected from the four bills which are now before the Houses of 

This compilation has been made bv Mr. R. R. Bowker, the very 
efficient vice-president of the Copyright League, who is at present in 
Europe. It nas been done with a view to saving the time of this 
committee and presents everjrthing that is desired hj the American 
Copyright League, together with aU the omissions desired. 

I present it formally, with the request that it be made a part of the 
record and that it may receive your very careful consideration, as I 
have no doubt it will. 

I thank the committee for their devotion to this cause and for their 
long and patient eflForts to arrive at a substantial copyright bill. 

The Chairman. Without objection, it will be placed in the record. 

(The compilation referred to was, by direction of the conmiittee, 
made a part of the record and is asi follows:) 


There are now referred to the Committees on Patents of the Sixtieth Con- 
■gress fonr copyrijjrht bills: Senator Smoot's (S. 2491)) and Senator Kittredge*8 
(S. 2900) before the Senate committee; and Mr. Currier's (H. R. 243) and Mr. 
Barchfeld's (H. R. 11794) before the House committee. The Smoot and Cur- 
rier bills express the views of the chairmen of the two committees, Senator 
Smoot having succeeded Senator Kittredge as chairman of the Senate commit- 
tee, and are practically the same, though with slight variance in language, both 
specifically excepting mechanical music from copyright. The Kittredge and 
Barchfeld bills are also practically nlilce, though with slight variations in lan- 
guage, both these specifically including mechanical music under copyright. 
The following presents, in the main, the text of the current bills in the left- 
hand side of the page, with such omissions and additions as would apparently 
make the bill a compromise acceptable to most, if not all, the interests con- 
cemeil : and on the right hand of the page the omitted points and the variations 
of imijortance in the several bills. The purpose of this is to suggest a bill on 
which there could be general agreement, on the understanding that the two 
mooted points as to mechanical music and as to further restrictions in the 
manufacturing provision should be considered after the passage of the main 
measure, so as not to endanger the bill in its generally accepted features. Sul)- 
stantial variations from the Fifty-ninth Congress bills are shown in the text by 
italics or in the right-hand column. Merely verbal variations, as " moneys " 
for " money," are not noted. The four bills each contain 07 sections, the seem- 
ing addition of 10 sections to the Fifty-ninth Congress bills representing only 
a division of former sections for clearness of reference, but the facts that the 
Currfer bill retains House sections 7 and 8 of last year, while the Barchfeld, 
Kittredge, and Smoot bills retain the single Senate section 8, and that the Cur- 
rier and Smoot bills omit the " separate estate " provision of section 34 of the 
Fifty-ninth Congress bills, while the Barchfeld and Kittredge bills retain this 



aji A^-^I^jin 44, make the section Dnmbering except in tbe lint six mod tlie latter 
^Mir-fyjf.ji 4itf^iT(Sit fn tbe several bills. 

H^ a *mnri^4 hy the Senate and 
H'/H** f,f ff^pr^M^^tntireM of the United 
fif^i^-M ',f America m Congrenn om- 

Ht/TfUf%% 1 Z: Natlm or Copyright. 

^ry . 1. Tlt^t the copyright secored 
f/; •: :♦ a'rt •ball 'in^lnfU: tlie exclusive 

'*» To pfifjt. refill fit, pabllsh, copy 
*.vl ^«!?>J th* f:ff\fy nzhtf^l wort: 

T/ To tran^iate tlie copyrighted 
w/flc ffiUi f0tti*n' IflngTjflges or dialects 
'>r fftttlMr any orb^^ t«-rf»ion thereof </ it 
V 4 literary trork, to drainatfxe It If 
!• fc^ a fy^ridmrmitlc work, to convert it 
J/j*o a Dov*'! or other nondraiqatic 
w *if if It fj*r a drsifriji. to arrange or 
*/!-^j/* if if it i#e a rtiUHical worlc, to 
'i'/fj*:^:*^^, ex^.tjfe arid ft n I Mb it if It be 
a ti.'0\i^\ 'ft d^jsrii for u work of art, to 
^}$ry 'fT a'lapt ir jf It Imt a work of art: 

''-* 'lo ilt-W^t'T OT aiitliorize the de- 
JIv«^y of the '-opyrigbte*! work In pnb- 
Ji'- for i/T'/ftt If it 1^ a lectnre, serinon, 
a'l/ir«iui or ffiriiiJar pr^MliK-tlon : 

i*it To fierfonn or rei»resent the 
^>P> righted work [fiibJicly if It be a 
dra ff la ; 

<«-» To perforin the copyrighted 
fi-^rfc pribUcly for profit if It be a mn- 
al'-al r'iputiffmStUm on which such right 
of piiblir- fierforrnan^ for profit has 
i^^-efi TfmrT^M as provided in section 
MU'tfi of this act. 

Htj:. 2. Tliat nothing in this act shall 
iie f'OfifftriiMl to annal or limit the 
right of the author or proprietor of 
an iinptjblif>lufd work, at common law 
*n III wjulfy, to pr^'vent tlie copy inc. 
f/ijbli<';ition« or iim* of such iinpnl>- 
llfflK'fl work without bis consent and to 
*Afin\u diini;tgf'S th^'refor. 

Hk0-. Z. That fli<» ''oiiyrigbt provided 
by this a'-t sball protin^t all th«* cofiy- 
rigbtable r»omiK»iient [»arts of the work 
co|»yri;cbtwl, and all matter therein in 
whW'b f*r^iyrigbt Is already subsisting, 
but witlKMit extending the duration or 
s«>|i** of such coiiy rl ght. The cojtifriffh t 
vjffm fffmpijnite w^trkn t/r periofliraU 
nhtill ffire to the proprietor thrnof all 
th*' riffhfH in nnpert therrto which he 
vouitl have if rarh part irrre indiridU' 
My ropyrifthtt'd under thitt act. 

Siw-rrows 4 «: Ri'iURrT-MATTRB of 

8bc. 4. That the works for which 
copyright may i>e secured under this 
act shall include ail the works of an 


Set. 1 ih\ Currier bUl adds " Pro- 
Tided. That the words 'to arrange or 
adapt it if it be a musical wort * shall 
not. for the parpoae of this act, be 
deemed to Include perforated rolls used 
for playing musical instruments, or 
records used for the reprodnction of 
sr>und waves; or the matrices or other 
a p|il lances by which sodi rolls or rec- 
ords are made." 

(b) Smoot bUl adds: '^Frwoided, 
That the words ' to arrange or adapt it 
If It l>e a musical wort * shall not, for 
the purpose of this act be deemed to 
include the excluslTe right to repro- 
duce, by means of or to nuuiaflftcture 
perforated rolls used for playing mn- 
sical Instruments, or records used for 
the r^roductlon of soond wayea, or 
the matrices or other appUanoes by 
which such rolls or records are made.* 

These provisos are rendered imneces- 
sary by the declrton of the Supreme 
Conrt, and would be opposed by au- 
thora as turning a tacit exception into 
an explicit privilege. 

Sec. 1 (c) KIttredge biU retatais the 
form of the Senate biU of the SOth 
Congress: **and for the porpose of 
public performance for profit, and, for 
the purposes set forth in sub-section 
(a) hereof, to make any arrangement 
or setting of it or of the melody of It 
In any system of notation or any form 
of record in which the thon^t of an 
author may be recorded and from 
which It may be read or reproduced." 

(c) Rarchfeld bill includes a similar 
addition, replacing second "and" by 
or and rending '* in any system or no- 
tiition, or to make any form of record 
thvrvof*' etc. 

SBa4. KIttredge and Barchfeld bills, 
retaining the form of the Senate bill 
of the 5$Hh Congress, add: "Wheti- 
aver the words ' works of an author * 



Sec. 5. That the application for reg- 
istration shall specify to which of the 
following classes the work in which 
copyright is claimed belongs : 

(a) Books, incladlng composite and 
cyclopiedic works, directories, gazet- 
teers, and other compilations ; 

(b) Periodicals, including newspa- 

(c) Lectures, sermons, addresses 
prepared for oral delivery ; 

(d) Dramatic compositions; 

(e) Musical compositions; 

(f) Maps; 

(g) Works of art; models or de- 
signs for works of art ; 

(h) Reproductions of a work of art ; 

(1) Drawings of plastic works of a 
scientific or technical character; 

(J) Photographs; 

(k) Prints and pictorial illustra- 
tions ; 

Provided^ nevertheless. That the 
above specifications shall not be held 
to limit the subject-matter of copy- 
right as defined in section four of this 
act, nor shall any error in classifica- 
tion invalidate or impair the copyright 
protection secured under this act. 

Sec. 6. That compilations or abridg- 
ments, adaptations, arrangements, 
dramatizations, translations, or other 
versions of works in the public do- 
main, or of copyrighted works when 
produced with the consent of the pro- 
prietor of the copyright in such works, 
or works republished with new matter, 
shall be regarded as new works subject 
to copyright under the provisions of 
this act, but no such copyright shall 
affect the force or validity of any sub- 
sisting copyright upon the matter em- 
ployed or any part thereof or be con- 
strued to imply an exclusive right to 
such use of the original works or to 
secure or extend copyright In such 
original works. 

Sec. 7. That the publication or re- 
publication by the Government, either 
separately or in a public document, of 
any material in which copyright is sub- 
sisting shall not be taken to cause any 
abridgment or annulment of the copy- 
right or to authorize any use or appro- 
priation of such copyright material 
without the consent of the copyright 

Sec. 8. That no copyright shall sub- 
sist in the original text of a work by 
any author not a citizen of the United 
States first published without the lim- 
its of the United States prior to July 
first, eighteen hundred and ninety-one ; 
or in the original text of any work 
which has fallen into the public do- 

39207—08 « 

appear in this act they shall be con- 
strued as having the same meanings as 
writings, including in the term * writ- 
ings' all forms of record in which 
the thought of an author may be re- 
corded and from which it may be read 
or reproduced." 

The Kittredge-Barchfeld provisions 
in Sees. 1 (c) and 4 present the musi- 
cal authors* case and are strongly 
urged by the Authors* League and all 
friends of copyright as vitally neces- 
sary to secure to authors of musical 
writings the "exclusive benefit" pro- 
vided for in the Constitution and cov- 
ering the protection indicated in the 
opinions of the Circuit and Supreme 
Court Justices as a proper subject for 
Congressional action. To promote the 
passage of the general bill, the Au- 
thors* League is prepared to accede to 
the separate presentation of these pro- 
visions as a supplementary measure. 

Sec. 4. All the 60th Congress bills 
omit as unnecessary and undesirable 
the words "literary, artistic, musical, 
and dramatic ** before " works of an 
author," included in the Senate form 
of the 59th Congress bill. 

Sec. 5 (a). All the 60th Congress 
bills also omit the words "and new 
matter contained in new editions; but 
not including works specified in other 
subsections hereunder," as fully cov- 
ered in Sec. 6. 

Secs. 7 and 8 are retained in the 
Currier bill as in the 59th Congress 
House bills, while the Barchfeld, Kit- 
tredge and Smoot bills condense the 
two sections as follows into one, as 
in the previous Senate form : 

" Sec. 7. That no copyright shall 
subsist : 

(a) In any publication of the United 
States Government or any reprint, in 
whole or in part, thereof: Provided, 
however. That the publication or re- 
publication by the Government, either 
separately or in a public document, of 
any material In which copyright is 
subsisting shall not be taken to cause 
any abridgment or annulment of the 
copyright or to authorize any use or 
appropriation of such copyright mate- 



rial without tlie consent of the copy- 
right proprietor; 

(b) In the original text of any work 
which is in the public domain." 

The same purposes are covered in 
both forms, as foreign boolis prior to 
July 1, 1891, are in the public domain, 
the Currier form being more con- 

The numbering of sections follow- 
ing differs in the several bills because 
of this condensation in the Currier bill. 

Section 9: Who May Obtain Copy- 

Sec. 5. That the author or proprietor 
of any work made the subject of copy- 
right by this act, or his executors, 
administrators, or assigns, shall have 
copyright for such work under the con- 
ditions and for the terms specified in 
this act; Provided, however^ That the 
copyright secured by this act shall ex- 
tend to the work of an author or pro- 
prietor who is a citizen or subject of 
a foreign state or nation, only : 

(a) When such foreign author or 
proprietor shall reside within the 
United States at the time of the first 
publication of his work, or shall first 
or contemporaneously with its first 
publication in a foreign country pub- 
lish his work within the limits of the 
United States; or 

(b) When the foreign state or na- 
tion of which such author or proprietor 
is a citizen or subject grants, either by 
treaty, convention, agreement, or law, 
to citizens of the United States the 
benefit of copyright on substantially 
the same basis as to Its own citizens, 
or copyright protection substantially 
equal to the protection secured to such 
foreign author under this act or by 
treaty; or when such foreign state or 
nation Is a party to an Inteniatlonnl 
agreement which provides for reciproc- 
ity In the granting of co|)y right, by the 
terms of which agreement the United 
States may at its pleasure become a 
party thereto. 

The existence of the reciprocal con- 
ditions aforesaid shall be determined 
by the President of the United States, 
by proclamation made from time to 
time, as the purpose of this act may 

Sections 10-23 ; How to Secure Copy- 

Sec. 10. That any person entitled 
thereto by this act may secure copy- 
right for his work by publication there- 
of in the United States with the notice 
of copyright required by this act; and 

Sec. 10. Kittredge bill omits the 
words "in the United States" after 
the words ** by publication thereof.'* 

Sec. 10. The omission of the brack- 
eted words, In view of the decision of 


such notice shall be affixed to each 
copy thereof published or oflPered for 
sale in the United States by authority 
of the copyright proprietor, except in 
the case of books seething ad Interim 
protection under section sixteen of this 
act. [In the case of a work of art or 
a plastic work or drawhig, such notice 
shall be affixed to the original also 
before publication thereof within the 
United States.] 

Sec. 11. That such person may ob- 
tain registration of his claim to copy- 
right by complying with the provisions 
of this act, and upon such compliance 
the Register of Copyrights shall issue 
to hina the certificate provided for in 
section fifty-eight of this act. 

Sec. 12. That registration may also 
be had of the works of an author of 
which copies are not reproduced for 
sale by the deposit, with claim of copy- 
right, of the title and one complete 
copy of such work, if it be a lecture 
or similar production or a dramatic or 
musical composition ; of a photographic 
print, if the work be a photograph ; or 
of a photograph or other identifying 
reproduction thereof, if it be a work 
of art, or a plastic work or drawing; 
1 the notict of copyright in these latter 
cases being affixed to the original be- 
fore publication, as required by section 
ten of this act.] But the privilege of 
registration secured hereunder sliall 
not exempt the copyright proprietor 
from the deposits of copies under sec- 
tion twelve of this act where the work 
is later reproduced in copies for sale. 

Sec. 13. That after copyright has 
been secured by publication of the 
work In the United States with the 
notice of copyright as provided in sec- 
tion ten of this act, there shall be de- 
posited in the Copyright Office or In 
the mall addressed to the Register of 
Copyrights, Washington, District of 
Columbia, two complete copies of the 
best edition thereof then published, 
which copies, if the book be a book or 
periodical, shall have been produced 
in accordance with the manufacturing 
provisions specified In section sixteen 
of this act ; or If such work be a con- 
tribution to a periodical, for which 
contribution special registration is re- 
quested, one copy of the Issue or Issues 
containing such contribution ; or if the 
work is not reproduced in copies for 
sale, there shall be deposited the copy, 
print, photograph or other identifying 
reproduction provided by section twelve 
of this act, such copies or copy, print, 
photograph or other reproduction to 
be accompanied in each case by a claim 
of copyright. No action or proceed- 
ing shall be maintained for infringe- 

the Supreme Court in the Werckmeis- 
ter case, is advocated by the Authors* 
League in the Interest of artists, as in 
conformity with the best practice in 
other copyright systems — and the omis- 
sion Is acceptable to the print pub- 

Sec 12. See section 10 as to brack- 
eted words. 

Sec. 13. Klttredge bill omits the 
words ** in the United States " after 
the words ** publication of the work," 
and adds the word ** promptly " before 
** deposited." 



neot of eoujTi0st in aoy work aotil 
the proriiiioDif of tUs seetioo with re- 
ii|W9r.-t to tbe deposit of copies and reg- 
istnitioo of such wotIe shall hare been 
i-omulled with. 

Kec. 14, That sboald the copies 
'-ailed for bjr this section not be 
prr/mfitljr deprjsited^ as herein pro- 
vided« the Hi^tfier of Copyrights may 
at any time after the publication of 
tlie woric, ufion sfieeiflc written de- 
niand* require the proprietor of the 
f-fif^right to deposit them, and after 
tlie Maid demand shall have been made, 
in default of the deposit of copies of 
the worl( within one month from any 
part of the United States except an 
outlying territorial possession of the 
United Htates, or within three months 
from any outlying territorial posses- 
sion of the Uuited States or from any 
foreign country, the proprietor of the 
cofiyright shall \)e liable to a fine of 
tme hundred dollars. 

Kw;. 15. That the postmaster to 
whiim are delivered the articles depos- 
ited as provided in section twelve of 
this act shall, if requested, give a re- 
ceifit therefor, and sliali mail them to 
their destination without cost to the 
copyright claimant. 

Hec. 1«. That of the printed book or 
fieriodical specified in Beciion five, sub- 
nectUmn (a) and (6) of this act the 
text of all cfifdeti accorded protection 
under thin act, except at bcUtw pro- 
vided, Hhfill be iirinted from type set 
within the limits of the United States, 
I'ither by hiiiid or by the aid of any 
kind of tyiiesettlng machine, or from 
plates nifide within the limits of the 
United Ktat<»s from type set therein, 
or if the text be proiluced by lltho- 
grnphi<' jinK'eHH, thon by a process 
wholly iH*rf<>rnHMi within the limits of 
the UiiitfHl StateH. and the printing of 
Mil id book Hhall l>e |)crfnrni(Hl within 
the limitH of the Unltcil Staton; which 
r(Hjnir(*tncntH Hhall extend also to the 
lIluMtrationM phhIucchI l)y -lithographic 
proceKK within a prlnt(Hl book consist- 
ing of text and llluHtrations, and 
also to m>|Minite lithographs, except 
where in either case the Hubjects rep- 
reH<>nt('<I are lo<'at(Ki In a foreign coun- 
try: but they Khali noft apply to works 
in ralMKl chararterK for the uhc of the 
blind,* or to bcMiks publlHhed abroad 
s(K*klng ad Interim protection under 
this act. 

Sec. 14. Corrier and Smoot bills 
read: ^ shall forfeit soch copyright." 
This is strongly objected to by authors 
and publishers as an overdrastic pen- 
alty ini*olving incertitude of copyright 

Sea 16. The " mannfkcturing provi- 
sion" varies from that in the 59th Con- 
gress bills in replacUig with the phrase 
'* accorded protection under this act" 
the words "deposited," etc., and in 
minor points of phraseology. 

Sec. 16. All four bills include the 
words **and binding" after the word 
"printing." which were added to the 
provision after the conferences, and is 
an additional restriction strongly ol)- 
jected to by authors and publishers as 
an unjustifiable extension of the manu- 
facturing provision to an incidental, 
non-essential part of a printed lK>ok, 
seriously jeoparding property right. 

Sec 16. Barchfeld and Klttredge 
bills include the words "or photo-en- 
gravings process" after the words 
"lithographic process" in each cas^ and 
the words " or photo-engravings " after 
the word '* lithographs " — a still later 
addition. This is equally objectiona- 
ble, as carrying the manufacturing pro- 
vision into the graphic arts and pre- 
venting the obtaining for American 
artists of certain reciprocal rights in 
other countries The inclusion of sep- 
arate plates seems incompatible, also, 
with the specification at the l)eginning. 

Sec. 16. •The Authors' League spe- 
cially urges including the words " or 
the original text of a foreign work In 
a language other than English" as a 
clause just to French, German, and 
other non-Engliah authors, preventa- 



Sec. 17. That any person who for the 
purpose of obtaining registration of a 
claim to copyright shall knowingly 
and willfully make a false affidavit as 
to his having complied with the above 
conditions shall be deemed guilty of a 
misdemeanor, and upon conviction 

tive of the threatening withdrawal of 
Qermany from copyright relations, and 
promotive of the printing interests be- 
cause of increased demand for Ameri- 
can translations of such works. 

Sbc. [16-17.] The "affidavit provi- 
sion/' which had previously passed one 
House without attracting attention, is 
Included in the Barchfeld and Kitt- 
redge bills as section sixteen and in 
the Currier and Smoot bills as section 
seventeen, as follows: 

" In the case of the book the copies 
so deposited shall be accompanied by 
an affidavit, under the official seal of 
any officer authorized to administer 
oaths within the United States, duly 
made by the person claiming copyright 
or by his duly authorized agent or 
representative residing in the United 
States or by the printer who has 
printed the book, setting forth that the 
copies deposited have been printed 
from type set within the limits of the 
United States or from plates made 
within the limits of the United States 
from type set therein, or, if the text 
be produced by lithographic process, 
that such process was wholly per- 
formed within the limits of the United 
States, and that the printing of the 
said book have also been performed 
within the limits of the United States. 
Such affidavit shall state also the place 
where and the establishment or estab- 
lishments In which such type was set 
or plates were made or lithographic 
process or printing were performed and 
the date of the completion of the print- 
ing of the book or the date of publica- 

The specifications as to binding and 
photoengravings are also included in 
this section in the respective bills as 
above stated. 

The affidavit provision Is unprece- 
dented in copyright legislation, would 
be burdensome and vexatious to au- 
thors and publishers, as also to the 
Copyright Office, and no evidence has 
been adduced to show that it Is needed 
In protection of typographers' inter- 
ests. It ifif therefore opposed strongly 
by authors, publishers, and master- 
printers, and the Authors' league urges 
that added restrictions in the manu- 
facturing provisions, beyond those in 
the text in the left-hand column, be re- 
ported in a second supplementary meas- 

Sec. 17. Barchfeld and Klttredge bills 
do not include the words "and will- 


thereof shall be pnnldhed by a fine of 
not more than one thousand dollars, 
and all of his rights and privileges 
under said copyright shall thereafter 
be forfeited. 

Sec. 18. That the notice of copyright Sec. 18. Currier and Smoot bills re- 
required by section ten of this act shall tain *' obtained " In place of "secured." 
consist either of the word " Copyright," 
or the abbreviation " Copr.," or, in the 
case of copies of the works specified in 
subsections (f) to (k), inclusive, of 
section five of this act, the letter C in- 
closed within a circle, thus: (C), ac- 
companied in every case by the name 
of the copyright proprietor; or. In the 
case of copies of works specified in 
subsections (f) to (k), inclusive, of 
section five of this act, by his initials. « 

monogram, mark, or symbol, provided 
that on some accessible portion of such 
copies or of the margin, back, perma- 
nent base or pedestal, or of the sub- 
stance on which such copies shall be 
mounted his name shall appear. If 
the work be a printed literary, musical, 
or dramatic work, the notice shall in- 
clude also the year in which the copy- 
right was secured by publication. But 
in the case of works in which copy- 
right is subsisting when this act shall 
go into effect, the notice of copyright 
may be either in one of the forms pre- 
scribed herein or in one of those pre- 
scribed by the act of June eighteenth, 
eighteen hundred and seventy-four. 

Sec. 19. That the notice of copyright 
shall be applied, in the case of a book or 
other printed publication, ui)on its title- 
page or the page immediately follow- 
ing, or, if a periodical, either upon the 
title-page or uiwn the first page of text 
of each separate number or under the 
title heading, or if a musical work 
either uiwn Its title-page or the first 
page of music ; or if a copy of a work 
siiecified in subsections (f) to (k). In- 
clusive, of section five of this act, ui)on 
some accessible portion thereof or of 
the margin, back, permanent base or 
pedestal, or of the substance on which 
such coi)y shall be mounted. 

One notice of copyright in each vol- 
ume published shall suffice. 

Sec. 20. That upon every copy of a 
published musicnl composition in 
which the right of public ixirfonnance 
for profit is reserved there shall be Im- 
printed under the notice of copyright 
the words " Ilight of public iK?rform- 
ance for profit reserve*!.'* in default of 
which no action shall be maintained 
nor r«*overy l>e had for any such iier- 
formanco althou^rh without the con- 
sent of the copyright proprietor. 



Sec. 21. That where the copyright 
proprietor has sought to comply with 
the provisions of this act with respect 
to notice, the omission by accident or 
mistake of the prescribed notice from 
a particular copy or copies shall pre- 
vent the recovery of damages against 
an innocent infringer misled thereby, 
but shall not Invalidate the copyright 
or prevent recovery for Infringement 
against any person who after actual 
notice of the copyright begins an under- 
taking to infringe it, but In a suit for 
infringement against such infringer, 
no permanent injunction shall be had 
unless the copyright proprietor shall 
reimburse to the innocent infringer his 
reasonable outlay innocently incurred. 

Sec 22. That in the case of a book 
published in a foreign country before 
publication in this country the deposit 
in the Copyright Office not later than 
thirty days after its publication abroad 
of one complete copy of the foreign edi- 
tion with a request for the reservation 
of the copyright, and a statement of 
the name and nationality of the au- 
thor and of the copyright proprietor, 
and of the date of publication of the 
said book, shall secure to the author 
or proprietor an ad interim copyright. 
Except as otherwise provided, the ad 
interim copyright thus secured shall 
have all the force and effect given to 
copyright by this act, and shall endure 
[as follows: 

In the case of a book printed abroad 
in a foreign language, for a period of 
two years after the first publication of 
the book in the foreign country;! 

In the case of a book printed abroad 
in the English language or in English 
and one -or more foreign languages, 
until the expiration of thirty days 
after such deposit in the Copyright 

Sec. 23. That whenever within the 
period of such ad interim protection 
an authorized edition shall be pub- 
lished within the United States, in ac- 
cordance with the manufacturing pro- 
visions specified in section sixteen of 
this act, (a) of a book in the English 
language or (b) of a book in a foreign 
language, [either in the original lan- 
guage or] in an English translation 
thereof, and whenever the provisions 
of this act as to deposit of Qopies, reg- 
istration [filing of affidavit], and the 
printing of the copyright notice shall 
have been duly complied with, the 
copyright shall be extended to endure 
in such original book for the full 
terms elsewhere provided in this act. 

Sec. 21. Barchfeld, Kittredge, and 
Smoot bills modify the language as 
follows : 

"That where the copyright propri- 
etor has sought to comply with the pro- 
visions of this act with respect to no- 
tice, the omission by accident or mis- 
take of the prescribed notice from a 
particular copy or copies shall not in- 
validate the copyright or prevent re- 
covery for infringement against any 
person who, after actual notice of the 
copyright, begins an undertaking to 
infringe it, but shall prevent the recov- 
ery of damages against an innocent in- 
fringer who has been misled by the 
omission of the notice; and In a suit 
for infringement no permanent injunc- 
tion shall be had unless the copyright 
proprietor shall reimburse to the in- 
nocent infringer his reasonable outlay 
innocently Incurred if the court, In its 
discretion, shall so direct." 

Sec. 22, in case the suggestion of the 
Authors* League as to the manufac- 
turing provision (see note on section 
16) is adopted, would require corre- 
sponding modification. 

Sbc. 23. Brackets Indicate corre- 
spondingly necessary omissions. 

Sec 23. Currier bill substitutes 
" work ** for " book " at close of section. 



SccnoHB 24-26: Dubation of Copt- 
big bt. 

8bc. 24. That the copyright secured 
by this act shall endare : 

(a) Id the case of any posthumous 
work, for thirty years from the date 
of tint publication; 

(b) In the case of any periodical 
or other compotiie work, or of any 
tcork copyrighted by a corporate body 
(otherwise than as assignee of the in- 
dividual author or authors), or by an 
employer for whom such work is made 
for hire, for forty-two years from the 
date of first publication; 

(c) In the case of any work not 
specified in subsections (a) and (b) 
of this section, but including a contri- 
bution to a periodical when such conr 
tribution has been separately regis- 
tered under the provisions of section 
thirteen of this act, for forty-two 
years from the date of first publica- 
tion or for the remainder of the life- 
time of the author after first publi- 
cation and for thirty years after his 
death (or if a work by joint author^ 
until thirty years after the death of 
the last survivof of them), whichever 
shall prove the longer period; 

Provided, That within the year next 
preceding the expiration of twenty- 
eight years from the first publication 
of such work the copyright proprietor 
shall record in the Copyright Office 
a notice that he desires the fnll term 
provided herein, and in default of such 
notice the copyright protection in such 
work shall determine at the expira- 
tion of twenty-eight years from first 
publication. And provided further, 
that where the term in to extend be- 
yond the lifetime of the author, it 
Hhall he the duty of his executors, ad- 
miniHtratorft, or asMons to further re- 
cord in the Copyright Office the date of 
hin death. 

In all of the above easels the term 
Khnll extend to the end of the calendar 
year of expiration. 

Skc. 25. That the copyright in a 
work publlHhe<i anonymously or under 
an asHumed name shall subsist for 
the same iktIimI ns If the work had 
Imm'U pro<luced bearing the author's 
true namr. 

Skc. LM;. That the copyright subsist- 
ing in any work at the time when this 
jM't g<K»s into efTc.H't may, at the expira- 
tion of the renewal term provided for 
imder fxlsllng law, be further re- 
newiHl and extended by the author, if 
he be still living, or if he be dead, 

Sbc. 24. The clause of the 69th 
Congress bills limiting photographs to 
28 years is omitted in all the 60th 
Congress bills. 

(b) The words in parentheses, 
though not in any of the bills, are 
necessary to cover the case of a per- 
sonal copyright taken out by an in- 
corporated firm of publishers. 

(c) Currier and Smoot bills omit 
the clause : ** but including a contribu- 
tion to a periodical when such con- 
tribution has been separately regis- 
tered under the provisions of section 
twelve of this act ; " also omit the 
words "for forty-two years from the 
date of first publication, or" and 
** whichever shall prove the longer pe- 

This omission is opposed by authors 
and publishers as shortening the pres- 
ent term in the case of works pub- 
lished within twelve years (before an 
author's death—possibly his best and 
most mature works. 

Sec. 25. The following addition, not 
in the bills, may be requisite to make 
the provision workable : *• provided, 
that at least one year before the expi- 
ration of forty-two years from the 
dnte of publication the true name of 
the author shall be registered In the 
Copyright Office.*' 

Sec 20. Barchfeld and Kittredge 
bills contain and Currier and Smoot 
bills omit the parts in italics. The 
latter addition represents an agree- 
ment between authors and publishers, 
imrtlcularly important In the case of 
cyclopedic works. 


leaving a widow, by his widow, or In 
her default, or if no widow survive 
bim, by his children. If any sunive 
him, for a further period such that the 
entire term shall be equal to that se- 
cured by this act and the privileges 
secured hereunder to the widows of 
authors shall equally be enjoyed by 
the widowers of authors, and if such 
author, tcidoto, icidower, or children 
8hall not he living at the passage 0/ 
this act, then his or her heirs, execu- 
tors, or administrators shall he en- 
titled to the privilege of renewal and 
extension granted under this section: 
Provided, That application for such re- 
newal and extension shall be made 
to the Copyright Oflace and duly reg- 
istered therein within one year prior 
to the expiration of the existing term ; 
And provided further. That if such 
suhsisting copyright shall hare heen 
assigned or a license granted therein 
for publication, and if such assignment 
or license shall contain provision for 
payment of royalty, and if the re* 
uewed copyright for the extended term 
provided in this act shall not be as- 
signed nor license therein granted to 
such original assignee or licensee or 
his successor, said original assignee or 
licensee or his successor shall never- 
thclcss he entitled to continue to publish 
the work on payment of the royalty 
stipulated in the original agreement; 
hut if such original assignment or li- 
cense contain no provision for the pay- 
ment of royalty, the copyright shall be 
renewed and extended only in case the 
original assignee or licensee or his suc- 
cessor shall join in the application for 
such renewal and extension. 

Currier bill reads " widowei 

Sections 27-42: Pbotection of Copt- 

Sec. 27. That if 'any person shall 
infringe the copyright in any work 
protected under the copyright laws of 
the United States such person shall be 

(a) To an injunction restraining 
such infringement; 

(b) To pay to the copyright pro- 
prietor such damages as the copyright 
proprietor may have suffered due to 
the Infringement, as well as all the 
profits which the Infringer shall have 
made from such Infringement, and in 
proving profits the plaintiff shall be 
required to prove sales only and the 
defendant shall be required to prove 
every element of cost which he claims ; 
or in lieu of actual damages and profits 
such damages as to the court shall 
appear to be Just; and In assessing 
such damages the court may In Its 

Sec. 27. Barchfeld and I 
bills omit the minimum claus 
Is of great practical Importan 
daily as a deterrent. 

Sec. 27. Fourth. Barchfeld t 
redge bills read: 

•• In the case of a dramatic 
matlco-muslcal or a choral 01 
tral composition, one hundrec 
for the first and fifty dollars i 
subsequent infringing perfonu 
the case of other musical eomi 
ten dollars for every iufrlng 



Ojv^p^TiKtt Oov the amoonts herein- 
t£i^ wjt'^Mt. &7t raefa damaises sttail 
n iH- 'at**- *at**d tbe ram of hx^ tboo- 
mta^ ^\»ijstTK mf/r >j^ U44 than ik€ #«bi 
tr tr'V i.*jfc^r^tf «a4 jffljr 4rAlart. and 
«uftd. i«ir t^ re^rded as m. penalty : 

Ks^^ Jit tbe case of a (tainting 
miftiK-. («■ Bculpture, ten dollars for 
'C^'Vrj jiJriTjglng cofiy made or sold by 
te Itimtd in tbe pocnession of tbe in- 
IrixnM' ^M tils apents or employees: 

fteeuiil. Id tbe case of any %>tber 
VATk «bVBenited in siection fire of 
TU» jin« <.r)np>l « palnliii^. «falar. or 
H"tbiplmr<^^ ubur dollar for every Infrin^- 
jd^ ^Ki^ auEKide or sold by or found In 
lijir >rjw» ! 't av iD of tbe Infrinirer or bis 
«9»tt!*» <«- emplorees: 

Ti;::M, la tbe case of a lectnnp, ser- 
auub. 4r a^drefls. fifty dollars for every 
jnif,iiB4sSs4^ delirery; 

F«wrtk. In tJie case of a dramatic or 
mmtk'xl ^0m%^MtiotK one hundred dol- 
ifer» £>>r tJw first and fifty dollars for 
*-»*»7 «r:f«4«qaent infrin^ng perform- 

•>t To <fc^iver up on oath to be Im- 
p^i^TuVd &nrin^ tbe pendency of tbe 
a^VA. ni^Ak SQcfa terms and ci>ndltions 
ail rb^ #^rfiirt may prescribe, all articles 
^^»^^ to Infringe a copyri^t. 

«4» To delirer np on oath for tie- 
ftfrvfU^ all tbe infringing copies or 
#l#'7Wfl. a« well as all plates. nH>lds. 
•uk trV*^. or other means for making 
»nv*h Infrf ngim^ eofUes as tbe ct>nrt may 

Er:>« and regulations for practUv 
a.vJ ifTfff^f^nr^ under this subsection 
•ha.: fM- pr^iscrlbed by the Supreme 
^v«rt of the f'nlted States: 

iff^. '^. That any court given jnrls- 
tti^U^u rsTtdfrr f^tiffU thlrt>--six of this 
A^t u^,y pT^ff^rt^ In any action, suit, 
*fT pfy^^fling InstitutfHl for violation 
'f A;./ [provision hereof to enter a 
jridgrrj^^it r/r decree enforcing tlH» 
r#^f#-»li^ h#-reln provided. 

Ml:/ . 2I9. That tbe proceedings for an 
irjjnri^rti/jri, damages, and profit, and 
th'^iv ioT tbe seizure of Infringing 
«i0lt\*^, platMi, molds, matrices, and so 
f'^h. afr^rementkHied, may be united 
in '^i** Hi'iUHi or suit. 

Krx*. ''4k That any person who know- 
ingly HHil willfully and for profit shall 
\utriuic*' any c^>f»yright secured by this 
aH. or who shall km>wingly and will- 
fully {till or abet such Infringement, 
shall ]f** dt'emed guilty of a ni lade- 
men nor. a mi ufion Ci>nviction thereof 
stiall t>e ptinished by Imprisonment for 
not exr-<*«Hli»ig one year or by a fine of 
not less tlian one hundred dollars nor 
more thiin one thousand dollars, or 
both. In the discretion of the court. 

Sec. 29. Barchfeld and Klttredge 
bills omit ''or suit." 

Sec. 30. Currier and Smoot bills re- 
place the Senate form of the 50th Con- 
gress bills with the House form: 
" shall be subject to a fine of not less 
than one hundred dollars nor more 
than one thousand dollars and stand 
couimitttHl to Jail until said fine and 
costs are paid." 

Imprisonment Is emphasized as spe- 
cially necessary for deterrent purposes 
by dramutlsts and musical composers. 



Sec. 31. That any person who, with 
fradulent Intent, shall insert or im- 
press any notice of copyrljjjht required 
by this act, or words of the same pur- 
port, In or upon any uncopyrighted 
article, or with fraudulent intent shall 
remove or alter the copyright notice 
upon any article duly copyrighted, 
shall be guilty of a misdemeanor, and 
upon conviction thereof shall be sub- 
ject to a fine of not less than one hun- 
dred dollars nor more than one thou- 
sand dollars, and stand committed to 
jail until said fine and costs are paid. 
Any person who shall knowingly issue 
or sell any article bearing a notice of 
United States copyright which has not 
been copyrighted in this country, or 
who shall knowingly Import any arti- 
cle bearing such notice, or words of 
the same purport, which has not been 
copyrighted in this country, shall be 
liable to a fine of one hundred dollars. 

Sec. 32. That the Importation Into 
the Ignited States of any article bear- 
ing such notice of copyright when 
there is no existing copyright thereon 
in the Ignited States, or of any pirati- 
cal copies of any work copyrighted in 
the United States, is prohibited. 

Sec 33. That during the existence 
of the American copyright in any book 
the Importation Into the United States 
of any piratical copies thereof or of 
any copies thereof (although author- 
ized by the author or proprietor) 
which have not been produced in ac- 
cordance with the manufacturing pro- 
visions specified in section sixteen of 
this act. or any plates of the same not 
made from type set within the limits 
of the United States, or any copies 
thereof produced by lithographic proc- 
ess not performed within the limits 
of the United States, in accordance 
with the provisions of section sixteen 
of this act. shall be, and is hereby, pro- 
hibited: Provided, however. That ex- 
cept as regards piratical copies such 
prohibition shall not apply. 

(a) To works in raised characters 
for the use of the blind ; 

(b) To a foreign newspaper or mag- 
azine, although containing matter 
copyrighted In the United States 
printed or reprinted by authority of 
the copyright proprietor, unless such 
newspa[>er or magazine contains also 
copyright matter printed or reprinted 
without such authorization; 

(c) To the authorized edition of a 
book in a foreign language or lan- 

Seg. 33. Barchfeld and Kittredge 
bills include the words *'or photo-en- 
graving process." 

(d) See note on section sixteen as 
to substituted words. 

Sec. 33. Third. Barchfeld and Kit- 
tredge bills add : " but such privilege 
of importation without the consent of 
the American copyright proprietor 
shall not extend to a foreign reprint 
of a book by an American author copy- 
righted in the United States unless 
copies of the American edition can not 
be supplied by the American publisher 
or copyright proprietor." 

This clause was understood to be 
opposed by Treasury officials, and was 
omitted from the 59th Congress bills 
as reported. It is strongly opposed 
by librarians, the American Library 
Association having instructed its com- 
mittee to protest against any provi- 
sions less liberal to libraries than 
those in the last Congress, and is not 
emphasized by authors. 



guages of which only a translation into 
English has been copyrighted in this 
country ; 

(d) To books in a foreign language 
or languages published without the 
limits of the United States but de- 
posited and registered for an ad In- 
terim copyright under the provisions 
of section sixteen of this act ; in which 
case the importation of copies of an 
authorized foreign edition shall be 
permitted during the ad interim term 
[of two years], or until such time 
within -this i)eriod as an edition shall 
have been produced In accordance with 
the manufacturing provisions specified 
in section sixteen of thi9 act ; 

(e) To any book published abroad 
with the authorization of the author or 
copyright proprietor when imported 
under the circumstances stated in one 
of the four subdivisions following — 
that is to say : 

First. When imported, not more than 
one copy at a time, for use and not 
for sale, under permission given by the 
proprietor of the American copyright; 

Second. When imported, not more 
than one coi)y at one time, by the au- 
thority or for the use of the United 

Third. When imported, for use and 
not for sale, not more than one copy 
of any such book in any one invoice, 
in good faith, by or for any society 
or institution incorporated for educa- 
tional, literary, philosophical, scien- 
tific, or religious purposes, or for the 
encouragement of the fine arts, or for 
any college, academy, school, or semi- 
nary of learning, or for any State, 
school, college, university, or free pub- 
lic library In the United States ; 

Fourth. When such books form 
parts of libraries or collections pur- 
chased en bloc for the use of societies, 
institutions, or libraries designated in 
the foregoing paragraph, or form parts 
of the libraries or i)erHonal baggage 
belonging to persons or families arriv- 
ing from foreign countries, and are not 
intended for sale: 

Provided, That copies imported as 
above may not lawfully be used in any 
way to violate the rights of the pro- 
prietor of the American copyright or 
aimul or limit the copyright protec- 
tion seouroil by this act, and such un- 
lawful use shall be deemed an infringe- 
ment of copyright. 

Sec. 34. That any and all articles 
prohibited importation by this act 
ichich are brought into the United 
States from any foreign country (ex- 
cept in the mails) shall be seized Qnd 
forfeited by like proceedings as those 
provided by law for the seizure and 

SEC8. 34-6. All four bills replace 
many sections in the 50th Congress 
bills by these generalized provisions. 



condemnation of property imported 
into the United States in violation 
of the customs-revenue Jatcs. Such 
articles, when forfeited, shall he de- 
stroyed in such manner as the Secre- 
tary of the Treasury or the court, as 
the case may be, shall direct: Provided, 
however. That all copies of authorised 
editions of copyright hooks imported in 
the mails or othcririse in violation of 
the provisions of this act may he ex- 
ported and returned to the country of 
export, whenever it is shown to the 
satisfaction of the Secretary of the 
Treasury, in a written application, 
that such importation does not involve 
willful negligence or fraud. 

Sec. 35. That the Secretary of the 
Treasury and the Postmaster-General 
are hereby empowered and required 
to make and enforce such joint rules 
and regulations as shall prevent the 
importation into the United States in 
the mails of articles prohibited impor- 
tation hy this act, and may require 
notice to he given to the Treasury De- 
partment or Post-Office Department, 
as the case may he, hy copyright pro- 
prietors or injured parties, of the ac- 
tual or contemplated importation of 
articles prohibited importation by this 
act, and which infringe the rights of 
such copyright proprietors or injured 

Sec. 36. That all actions, . suits, or 
proceedings arising under the copy- 
right laws of the United States shall 
be originally cognizable by the district 
and circuit courts of the United States, 
the district court of any Territory, 
the supreme court of the District of 
Columbia, the district courts of Alaska, 
Hawaii, and Porto Rico, and the courts 
of first Instance of the Philippine 

Sec 37. That actions, suits, or pro- 
ceedings arising under this act may 
be instituted in the district of which 
the defendant or his agent is an in- 
habitant, or in which either of them 
may be found. 

Sec 38. That any such court, or 
judge thereof, shall have power, upon 
bin In equity filed by any party ag- 
grieved, to grant Injunctions to pre- 
vent and restrain the violation of any 
right secured by said laws, according 
to th£ course and principles of courts 
of equity, on such terms as said court 
or judge may deem reasonable. Any 
Injunction that may be granted re- 
straining and enjoining the doing of 
anything forbidden by this act may 
be served on the parties against whom 
such injunction may be grantetl any- 
where In the United States, and shall 
be operative throughout the United 

Sec 3«. Currier and Smoot bills 
read : ** the copyright laws of the 
United States*' In place of ''said 
laws;'* also "proper" for •'reason- 

Barchfeld and Klttredge bills omit 
the words " or suit." 



States and be enforceable by proceed- 
ings in contempt, or otherwise, by any 
other court or Judge possessing Juris- 
diction of the defendants ; but the de- 
fendajits, or any or either of them, 
may make a motion in the proper 
court of any other district where such 
a violation is alleged to dissolve said 
injunction upon such reasonable notice 
to the plaintiff as the court or Judge 
before whom said motion shall be made 
shall deem proi>er, service of said mo- 
tion to be made on the plaintiff in per- 
son or on his attorney of record in the 
action or suit. Said courts or Judges 
shall have authority to enforce said 
Injunction and to hear and determine 
a motion to dissolve the«same, as here- 
in provided, as fully as if the action, 
suit, or proceeding were i)ending or 
brought in the district in which said 
motion is made. 

Sec. 39. That the clerk of the court, 
or Judge granting the injunction, shall, 
when required so to do by the court 
hearing the application to dissolve or 
enforce said injunction, transmit with- 
out delay to said court a certified copy 
of all the papers in said cause that are 
on file in his office. 

Sec 40. That the orders, Judgments, 
or decrees of any court mentioned in 
section thirty-six of this act arising 
under the copyright laws of the United 
States may be reviewed on appeal or 
writ of error in the manner and to the 
extent now provided by law for the 
review of cases determined in said 
courts respectively. 

Sec. 41. That no criminal action 
Hliall be nmintainod under the provi- 
sions of this act unless the same is 
commenced within two years after the 
cause of action arose. 

Sec 42. That in all actions, suits, 
and pr<K-oe<lings under this act full 
costH shall be allowed, and the court 
may award to the prevailing party a 
reasonable attorney's fee as part of 
the costs. 

Sec 40. Barchfeld bill adds : "An ap- 
I)eal shall also He to the circuit court 
of appeals from an order refusing or 
dissolving a temiwrary injunction.'* 
This is considered very desirable, if 
not legally objectionable. 

Sec 41. Barchfeld and Kittrodge 
bills read ** proceedings " in place of 
" action." 

Sec 42. Currier and 
read: "may be allowed' 
" shaU." 

Snioot bills 
in place of 

Sections 43-40: Tbansfebs of Oopt- 


Sec 43. That the copyright is dis- 
tinct from the proi>*Tty in the material 
object copyrighted, and the sale or con- 
veyance by gift or otherwise, of the 
material obJtKrt shall not of itself con- 
stitute a transfer of the copyright nor 
shall the assignment of the copyright 
constitute a transfer of the title to the 
material object. 

Sec 44. That each of the rights 
specified In section one of this act 
shall be deemed a separate estate sub- 

Sec 44. Currier and Smoot bills 
omit this section (34) of the 50th 
Congress bills. This ** separate estate " 



ject to assignment, lease, license, gift, 
bequest, inheritance, descent, or devo- 

Sec. 45. That every assignment of 
copyright under this act shall be by an 
instrument of writing signed and ac- 
knowledged by the proprietor of the 
copyright before an officer authorized 
to administer oaths. 

Sec. 46. That every assignment of 
copyright executed in a foreign coun- 
try shall be acknowledged by the as- 
signor before a consular officer or 
secretai-y of legation of the United 
States authorized by law to adminis- 
ter oaths or perform notarial acts. 
The certificate of such acknowledg- 
ment under the hand and official seal 
of such consular officer or secretary of 
legation shall be prima facie evidence 
,of the execution of the instrument. 

Sec. 47. That every assignment of 
copyright shall be recorded in the 
Copyright Office within three calendar 
months after its execution in the 
United States or within six calendar 
months after its execution without 
the limits of the United States, in 
default of which it shall be void as 
against any subsequent purchaser or 
mortgagee for a valuable considera- 
tion, without notice, whose assignment 
has been duly recorded. 

Sec. 48. That the Register of Copy- 
rights shall, upon payment of the pre- 
scribed fee, record such assignment, 
and shall return it to the sender with 
a certificate of record attached under 
seal of the Copyright Office; iand upon 
the payment of the fee prescribed by 
this act he shall furnish to any person 
requesting the same a certified copy 
thereof under the said seal. 

Sec 49. That when an assignment 
of the copyright in a specified book or 
other work has been recorded the as- 
signee may substitute his name for 
that of the assignor in the statutory 
notice of copyright prescribed by this 

Sections 50-64: Copyright Office. 

Sec 50. That all records and other 
things relating to copyrights required 
by law to be preserved shall be kept 
and preserved in the Copyright Office, 
Library of Congress, District of Co- 
lumbia, and shall be under the control 
of the Register of Copyrights, who 
shall, under the direction and super- 
vision of the Librarian of Congress, 
perform all the duties relating to the 
registration of copyrights. 

Sec 51. That there shall be ap- 
pointed by the Librarian of Congress 

provision is emphasized by authors 
and publishers as making clear though 
not altering the existing law on a 
mooted point. 

Sec 45. Barchfeld and Kittredge 
bills omit **and acknowledged** and 
** before an officer authorized to ad- 
minister oaths.*' 


a Register of Ck>p7iight8, at a salary 
of four thousand dollars per annum, 
and one Assistant Register of Copy- 
rights at a salary of three thousand 
dollars per annum, who shall have au- 
thority in the absence of the Register 
of Copyrights to attach the Copyright 
Office seal to all papers issued from 
said office, and to sign such certificates 
and other papers as may be necessary. 
There shall also be appointed by the 
Librarian such subordinate assistants 
to the Register as may from time to 
time be authorized by law. 

Sec. 52. That the Register of Copy- 
rights shall make daily deposits in 
some bank in the District of Colum- 
bia, designated for tliis purpose by the 
Secretary of the Treasury as a na- 
tional depository, of all moneys re- 
ceived to be applied as copyright fees, 
and shall make weekly deposits with 
the ^Ujcretary of the Treasury, in such 
manner as the latter shall direct, of 
all copyright fees actually applied un- 
der the provisions of this act, and an- 
nual deposits of sums received which 
it has not been possible to apply as 
copyright fees or to return to the re- 
mitters, and shall also make monthly 

reports to the Secretary of the Treas- • 

ury and to the Librarian of Congress 
of the applied copyright fees for each 
calendar month, together with a state- 
ment of all remittances received, trust 
funds on hand, moneys refunded, and 
unapplied balances. 

Sec 53. That the Register of Copy- 
rights shall give Innid to the United 
States in the sum of twenty thousand 
doIlarK, in form to be approved by the 
Solicitor of the Treasury and with 
sureties satisfactory to the Secretary 
of the Treasury for the faithful dis- 
charge of his duties. 

Sec. 54. That the Register of Copy- 
rights shall make an annual report to 
the Librarian of Congress, to be 
printeil in the annual report on the 
Library of Congress, of all copyright 
buHlncHs for the previous fiscal year, 
including the number and kind of 
works which have been deposited in 
the Copyright Office during the fiscal 
year, under the provisions of this act. 

Skc. 55. That the seal provided un- 
der the act of July eighth, eighteen 
hnndnnl and seventy, and at present 
used in the Copyright Office, shall con- 
tinue to be the seal thereof, and by it 
all papers Issueil from the Copyright 
Office requiring authentication shall be 

Sec. .%r,. That, subject to the ap- Sec. 56. Currier bill omits the im- 
proval of the TJbrarian of Congress, portant proviso, 
the Register of Copyrights shall be 
authorized to make rules and regula- 


tions for the registration of claims to 
copyright as provided by this act: 
Provided, That no breach of such rules 
or regulations shall affect the validity 
of the copyright. 

Sec. 57. That the Register of Copy- 
rights shall provide and keep such rec- 
ord books in the Copyright Ottice as 
are required to carry out the provi- 
sions of this act, and whenever deiwsit 
has been made in the Copyright Office 
of a title or copy of any work under 
the lu'ovisions of this act he shall 
make entry thereof. 

Sec. 58. That in the case of each 
entry the person rworded as the claim- 
ant of the copyright shall be entitled 
to a certlrtcate under seal of the Copy- 
right Office, to contain his name and 
address, the title of the work upon 
wbich copyright is claimed, the date 
of the dei)osit of the copies of such 
work, and such marks as to class des- 
ignation and entry number as shall 
fully identify the entry. In the case 
of a book the certificate shall also 
state the receipt of the affidavit as 
provided by section fourteen of this 
act, and the date of the completing of 
the printing, or the date of the publica- 
tion of the book, as stated in the said 
nffidavit. The Register of Copyrights 
shall prepare a printed form for the 
said certificate, to be filled out in each 
case as above provided for, which cer- 
tificate, sealed with the seal of the 
Copyright Office, shall, upon payment 
of the prescribed fee, be given to any 
person making application for the 
same, and the said certificate shall be 
admitted in any court as prima facie 
evidence of the facts stated therein. 

Sec. 59. That the Register of Copy- 
rights shall fully index all copyright 
registrations and assignments and 
shall print at periodic intervals a cat- 
alogue of the titles of articles depos- 
ited and registered for copyright, to- 
gether with suitable indexes, and at 
stateil intervals shall print complete 
and indexed catalogues for each class 
of copyright entries, and may there- 
upon, if expedient, destroy the orig- 
inal manuscript catalogue cards con- 
taining the titles included in such 
printe<l volumes and representing the 
entries made during such intervals. 
The current catalogues of copyright 
entries and the index volumes therein 
provided for shall l>e admitted in any 
court as prima facie evidence of the 
facts stated therein as regards any 
copyright registration. 

Sec. 60. That the said printed cur- 
rent catalogues as they are issued shall 
be promptly distributed by the Copy- 
right Office to the collectors of cus- 

89207—08 7 


toms of the United States and to the 
postmasters of all exchange offices of 
receipt of foreign mails, in accordance 
with revised lists of such collectors of 
customs and postmasters prepared by 
the Secretary of the Treasury and the 
Postmaster-Cteneral, and they shall 
also be furnished to all parties desir- 
ing them at a price to be determined by 
the Register of Copyrights not exceed- 
ing five dollars per annum for the com- 
plete catalogue of copyright entries and 
not excee<ling one dollar per annum for 
the catalogues issued during the year 
for any one class of subjects. The 
consolidated catalogues and indexes 
shall also be supplied to all persons 
ordering them at such prices as may 
be determined -to be reasonable, and all 
subscriptions for the catalogues shall 
be receIv€Hl by the Superintendent of 
Public Documents, who shall forward 
the said publications; and the moneys 
thus received shall be iiaid into the 
Treasitry of the United States and ac- 
counted for under such laws and 
Treasury regulations as shall be in 
force at the time. 

Sec 01. That the record books of the 
Copyright Office, together with the in- 
dexes to such record books and all 
works de|K>sited and retained in the 
Copyright Office, shall be oi^n to pub- 
lic insi»ection ; and coi»ies may be taken 
of the copyright entries actually made 
in such record books, subject to such 
safeguards and regulations as shall be 
prescribwl by the Ueglster of Copy- 
rights and approved by the Librarian 
of Congress. 

Skc. (»2. That of the articles depos- 
ited in the Copyright Office under the 
provisions of the copyright laws of the 
UnittHl States or of this act, the Libra* 
rian of Congress shall determine what 
biH»ks and other articles shall he trans- 
ferred to the i)emuinent collections of 
the Library <»r Congress, including the 
law library, and what other books or 
articles shall be phu^cil in the reserve 
collections of the Library of Congrt^ss 
for sale or ex<'hange. <»r be tninsferred 
to other pivernmental librnries in the 
District of Columbia for use tiierein. 

Sec. (W. That of any articles undis- 
posed of as al>ove prtniiltnl, together 
with all titles and c<»rresiMmdence re- 
lating thereto, the Librarian of (\>u- 
gress and the H«»glHter of (\M>y rights 
Jointly shall at suitable intervals de- 
termln«' what of tliest* rectal vtnl during 
any i»erhHl of years it is desirable or 
useful to pn*s(»rve in the |)ermanent 
flies of the Copjrght Office, and, after 
due ni»tice as hereinafter provided, 
may within thi^r discivtion causi' the 
remaining articles and other things 


to be destroyed: Provided, That there 
Rhall be printed in the Catalogue of 
Cojiyrigbt Entries from February to 
N()veuil)er, inclusive, a statement of 
the years of receipt of such articles 
and a notice to [)ermlt any author, 
copyright proprietor, or other lawful 
claimant to claim and remove before 
the expiration of the month of Novem- 
ber of that year anything found which 
relates to any of his productions de- 
lK)sited or registered for copyright 
within the period of years stated, not 
reserved or disp<»sed of as provided 
for in sections sixty-two and sixty -three 
of this act: And provided further. 
That no manuscript of an unpublished 
work shall be destroyed during the 
term of its copyright without si>eciflc 
notice to the author, copyright propri- 
etor, or other lawful claimant, per- 
mitting him to claim or remove it. 

Sec. 64. That the Register of Copy- Sec. 64, Barchfeld and Eittredge 
rights shall receive and the persons to bills read "certificate of registration." 
whom the services designated are ren- 
(l<Ted shall pay the following fees: 
For the registration of any work sub- 
ject to copyright deposited under the 
provisions of this act, one dollar, 
which sum is to Include a certificate 
under seal : Provided, That In the 
case of photographs the fee shall be 
fifty cents where a certificate Is 
not demanded. For every additional 
certificate of registration made, fifty 
cents. For recording and certifying 
any Instrument of writing for the as- 
signment of copyright, or for any copy 
of an assignment, duly certified, if not 
over three hundred words in length, 
one dollar ; If more than three hundred 
and less. than one thousand words In 
length, two dollars; If more than one 
thousand words In length, one dollar 
for each one thousand words and frac- 
tion thereof over three hundred words. 
For comparing any copy of an assign- 
ment with the record of such docu- 
ment In the Copyright OtRce and certi- 
fying the same under seal, one dollar. 
For recording the transfer of the pro- 
prietorship of copyrighted articles, ten 
cents for each title of a book or other 
article in addition to the fee prescribed 
for recording the Instrument of as- 
signment. For any requesteil search 
of Copyright Office recoixls. Indexes, 
or deposits, fifty cents for each full 
hour of time consumed in making such 
S4»arch: Provided, That only one regis- 
tration at one fee shall be required In 
the case of several volumes of the same 
book or periodical deposited at the 
same time or of a numbered series of 
any work specified In subsections (h), 
(j),and (k) of section five of this act, 
where such series represents the same 

100 %rr:^.:y :r xfh 

s^it:^r. •^-•-l 'irjii'** :c_"j :=. j^****^ :c 
ct-n:;*:*: *:#:•- L2*i tl-r -*-cirf rci>»¥c:;r 

oze :::-•? »::^ i '.'r^ :. t 

Sec. -T. Tl>i: .-_ '.--^ .--'--rT'-i.- c 
ar-il .> '«:r--r.:.-- :f :!_■? ii* " ■->? iAT* 
of ;.-t :::"i:::a ■ *^:: :- :i.-=: :^l*^ :' i. 
work •. f "«■!.. I. .•:■;.-* ^r- rr-:r tii'ivi 
for si> .r ii*-T::-- l :*r l-.L :: :^ 
the «r::e<' li> ■= 1-l ■:-:-* f ti»* 
first auiL rix^: r-: '. :. ^-r- - - ^^i c 

the i.n.;.r:e:.>r 'f :l-=^ " -jTr jI* r -::- 
der his ajTl-rlTr i--i Ui-r it rl - i -- 
thor" sLa'.I ::. . : Ir i~ -.:-. jrr -jl 
the case of w-.-rks i..\Lr t r L.rr. 

Sec •>;, TLa: a:: :*«* ir.i -iir-* :f ?e'. %- BtrAfcld and KIttrcd«e 
laws in conflict with ih^ rr-TiV..-* ; : .- r-^il:! ii» Scvtttft fon of the 50th 
this act are hereby re?«>i. t-t i. :t- •" -cr>S!» *-u:«. nnidiBs: ** DOChini: in 
Inp hfre:n v>:.:.::s--^i >:^ :. i'--;: oi :**-5 "^li> *-y- *ia'- atfert caoaes of action 
now i*^-^.lirij: in .v:- f :1«? r-::-i 'r iz^lz-x^Liect of copyrieht lieret<^ 
States, liu! suoh .?i\:s^ -l:.r. t« 7r*:«?e- f:-r? >:-ciz-:tTed iww pgnding In coarta 
cuied to a >.:. :-<"■:: iu :!-=■ z^:.z.^t >f '^ fziced 5iatea. or vhMi may 
heretofore^l l-v iw. i-rr-4f:er ie iaatitmcd.'* 

Sec. OT. Tha: :L:s k : sliai: c> ::.:•> 
effect on ihf rirst day ..^ Ju.y. --iiiT-.rtc 
hundretl auil v'.^hx. 


Mr. Chainnun. I merely want to >ay a word in supplement of 
what was siaieil la^t night, tn the enet't that in the opinion of the 
publishers ami :i very larsro i:r\v.;p of authi^rs whom ine publishers 
represent the ierin< of the ^^^pyri^ht propK>srJ in this bill, and vari- 
ous other niea-iures for the eiu\ninigement arid protection of ^literary 
pn>peiny. mark a very lariro advance and a very substantial net ^in 
over anyihiiii: thai has Uvn done in tlii< cNiiintry under previous 
statutes or iho MatuUvs that are in for.v in other literature-producing 

If there was time to phuv it In^fv^re yi»u I think I might show you 
a list of thousand- of Amorit'an authors of tlie na<t half generation 
and past generation, the ^nnip of whioh I-«Mi;rfeUow and Irving are 
the repre^»ntaiiv«»s, to whi>>o families this provision, if it hadoeen 
enforced twenty-tivo years ag^i, would have meant the difference 
between indopondenoe and poveiiy. It is true of Irving's nieces* of 
Hawthorne's family, and of thousands of families well known to vou 
reading: g»'niK*men. The term for the life of the author and thirty 
years thereafter will make, in the near future, substantial provision 
for literary i»»mi ami their families in this i^ountrj-. There would be, 
as Ml*. Johnson has pointeil ouU a few rases of authors whose fam- 
ilies thirty y«Mrs hence would lose a few years of protection which 
they mi^llt now .s<vure under the exten-ion,' which makes in all forty- 
two years under the existing statute: but I lH>lieve one could count 
thoM- ca-i--^ on* the fingers of one hand. T should be very sorry if 
anylxxiy .sho'ild find cause to complain of what you gentlemen iiave 


done, and I should be glad if even that little possible criticism 
might be removed. But taking the interest of American literature 
as a whole, I say that the objection is infinitesimally small, and that 
you gentlemen should legislate for the greatest good of the greatest 
possible number of the people. I want to put myself on record as 
acknowledging my appreciation of what you are doing here. 

I want to say a rurther word, supplementary of what was said 
here last evening, with regard to the proposed affidavits. I want 
to state that if any citizen is desirous of breaking the law, one affi- 
davit more or less is to him a small matter, while it was my belief 
and is my belief that for the large mass of law-abiding citizens it 
would be a continual tax and annoyance; but, nevertheleas, if you 
gentlemen are of the belief that the publishers, and the publishers 
alone in this country, must swear that they have kept the law, we shall 
accept your judgment as law-abiding citizens. 

The Chairman. I would like to ask whether there is anybody 
here representing the photographers? 

Mr. Livingstone. I do not represent them ; but they were here last 

The Chairman. Are there any gentlemen here representing the 
lithographers of the countrv? 

Mr. Livingstone. Mr, Cnairman, I desire to be heard on that 

The Chairman. Before we take that up I would like to ask if 
there is anyone here who desires to speak lurther on the question of 

Mr. Livingstone. Yes, Mr. Chairman, I desire to be heard on that 


Mr. Chairman, I speak for the Print Publishers' Association, and 
represent a number of firms. I wish to say, at the outset, that all 
of my remarks will pertain to our special field — that is, to the field 
of the fine arts and graphic reproductions, so far as the pictorial 
field is concerned. 

We are very strongly in favor of the provisions of the bill as a 
w^hole affecting our field. Present sections Nos. 10 and 12, covering 
the matter of notice, are immeasurably superior to the existing law, 
and will give us a very great relief. We like them so well and they 
are so great an advance over the existing law that we hesitate to 
make any further suggestions, and in making them we hope that 
you will not think we are ungi*ateful for what you have already pro- 
vided. Should you decide to keep those sections as they are, we will 
consider that we received a great deal of help and will be very grate- 
ful for it. 

But since these bills were introduced the Supreme Court of the 
United States has handed down a final decision in what is known as 
the Werckmeister case. One of the points of that decision is that 
original works of art, such as paintmgs and sculptures, need not 
have the notice of copyright affixed to them. If you can, therefore, 
see your way clear to change these sections and provide that the notice 
of copyright upon publications* of a work of art need not be affixed 


to the original, leaving the notice requirement as to copies just as 
you have provided under those sections, we would like it very much. 

If you do that, it would make the notice requirements, so far as 
original works of art are concerned, exactly the same as they are in 
other countries except Canada. 

Representative Currier. When was that case decided? 

Mr. Livingstone. I have a copy of it, and I will put it in the record 
if you desire. 

Kepresentative Currier. Very well ; we will be very glad to have it. 

(The opinion referred to was, by direction of the committee, made 
a part of the record, and is as follows:) 


(No. 28.— October Term, 1007.) 

American Tobacco Company, plaintiff in error, v. Emil Werckmelster, dofendaut 
in error — In error to tlie United States circuit court of api)eal8 for tlie second 
circuit— (December 2, 1907.) 

This Is a writ of error to the circuit court of appeals for the second circuit, 
seeking reversal of a Judgment affirming the Judgment of the United States 
circuit court for the southern district of New York in favor of the defendant 
in error, adjudging him to be entitled to the |)ossessIon of 1,100 sheets, each 
containing a copy of a certain picture called " Chorus," the some representing 
a company of gentlemen with ttlled glasses singing in chorus. The painting 
was the work of an English artist, W. Dendy Sadler. The defenduut In error 
claimed to be the owner of a copyright taken out under the law of the United 

The Judgment was rendered under authority of section 4905, as amended 
March 2, 1905. (U. S. Comp. Stat., v. 3, p. 3414.) 

In January, 1894, by agreement between the artist and Werckmelster, the 
defendant in error, it was agreed that the painting should be flulshed by March 
1 and then sent to Werckmelster to be photographed and returned to Sadler 
in time to exhibit at the Royal Academy in 1894. The painting was sent to 
Werckmelster at Berlin, where it was received on March 8, 1894, and was 
returned to Sadler in London on March 22, 1894. On April 2, 1894, the artist 
Sadler executed and delivered the following instrument: 

** I hereby transfer the copyright In my picture * Chorus ' to the Photo- 
graphlsche Gesellschaft, Berlin (The Berlin Photographic Companv), for the 
sum of £200. I^ndon, April 2, 1894. (Signed) W. Dendy Sadler." 

Werckmelster was a citizen of the Geiman Empire, doing business In Berlin, 
(»ermanj% under the trade name of ** Photographlsche Gesellschaft," and did 
business In New York City under the name of the ** Berlin Photographic Com- 

The Photographlsche Gesellschaft of Berlin, by letter dated March 31, 1804, 
received on April 16, 1894, deposited the title and description of the painting 
and a photograph of the same In the office of the Librarian of Congress, the 
intention being to ol)taln a copyright under the act of Congress. (U. S. ('<mip. 
Stat., v. 3, p. 3407.) After the painting was returned to Ix)ndon It was ex- 
hibited by Sadler at the exi^osltlon of the Uoyal Academy at I^omlon, and was 
there on exhibition for about three months; the exhlliltion oiiening the first 
Monday of May and closing the first Monday of August, ism. The exhibition 
was opened to the public on week days from 8 a. m. to 7 p. m., uiK)n the pay- 
ment of the admission fee of 1 shilling, and during the last week was oi)en 
evenings, tin* entrance charge being 6 pence. There was a private view for the 
press on May 2 and on May 3 up to 1 o'clock, and the remainder of the day 
was for the Koyal private view. There was also a general private view on 
May 4. The members and the associate members of the Royal Academy and 
the artists exhibiting at the exhibition and their families were entitled at all 
times to free admission, and they as well as the public visited the exhbltion in 
large numbers. 

During the time that the painting was shown at the exhibition it was not 
liiscrit>ed as a copyright, nor were any words thereon Indicating a copyright. 


nor on the substance on which it was mounted, nor on the frame, as required 
by the copyright act (U. S. CJompiled Stat, v. 3, p. 3411), if the original paint- 
ing is within the requirements of the law in this respect. 

The painting while on exhibition was for sale at the Royal Academy, but 
with the copyright reserved, which reservation was entered in the gallery sale 
book. The by-laws of the Royal Academy provided " that no permission to 
copy works on exhibition shall on any account be granted.*' The reasons for 
the by-laws, as it appears upon minutes of the Academy, are as follows : 

" That so much property in copyright being entrusted to the guardianship of 
the Royal Academy, the council feel themselves compelled to disallow, in 
future, all copying within their walls from pictures sent for exhibition.'* 

The photogravures of the painting were placed on sale in June, 1894, or in 
the autumn of 1894; those photogravures were inscribed with the notice of 

Mr. Sadler, the artist, afterwards, in October, 1899, sold the painting to a 
Mr. CJotterel, residing in London, England, since which time, so far as has been 
shown, it has been hanging in the dining room of the house of that gentleman. 

On June 20, 1902, Werckmeister commenced an action, by the service of a 
summons, against the American Tobacco Company, plaintiff In error, and on 
the same day a writ of replevin was issued out of the circuit court of the 
United States for the southern district of New York, directed to the marshal of 
the same district, requiring him to replevin the chattels described In an annexed 
affidavit. Under the writ the marshal seized, upon the premises of the Ameri- 
can Tobacco Company, 203 pictures. On July 23, 1902, Werckmeister caused 
another writ of replevin to issue out of the same court, directed to the marshal 
of the western district of New York, \inder which writ the marshal seized 99.'{ 

An amendment to the complaint set forth the seizure of the pictures. The 
copies seized were adjudged to be forfeited to the plaintiff Werckmeister and 
to be of the value of $1,010. 

The Judgment rendered in the circuit court was taken upon error to the 
United States circuit court of appeals and there affirmed. (146 Fed., 373.) 
The present writ of error is prosecuted to reverse the Judgment of the court 
of appeals. 

Mr. Justice Day delivered the opinion of the court. 

This case involves important questions under the copyright laws of the 
United States, upon which there has been diversity of view In the Federal 

Before taking up the errors assigned It may aid in the elucidation of the 
questions Involved to briefly consider the nature of the property In copyright 
which it Is the object of the statutes of the United States to secure and |)rotect 
A copyright, as the term ihiports, involves the right of publication and repro- 
duction of ^ works of art or literature. A copyright, as defined by Bouvler's 
Law Dictionary, Rawles's edition, volume 1, page 436, is " The exclusive privi- 
lege, secured according to certain legal forms, of printing, or otherwise multi- 
plying, publishing, and vending copies of certain literary or artistic produc- 
tions.'* And further, says the same author, '*The foundation of all rights of 
this description is the natural dominion which every one has over his own ideas, 
the enjoyment of which, although they are embodied in visible forms or char- 
acter, he may, if he chooses, confine to himself or impart to others.** That is, 
the law recognizes the artistic or literary productions of Intellect or genius, 
not only to the extent which is involved In dominion over and ownership of 
the thing created, but also the intangible estate in such proi)erty which arises 
from the privilege of publishing and selling to others copies of the thing pro- 

There was much contention in ESngland as to whether the common law recog- 
nized this property In copyright before the Statute of Anne: the controversy 
resulting in the decision In the House of Lords In the case of Donelson v, Beck- 
ett (4 Burr, 2408), the result of the decision being that a majority of the 
Judges, while in favor of the common-law right, held the same had been taken 
away by the statute. (See Wheaton r. Peters, 8 Pet., 591-G56; Holmes v. Hurst, 
174 U. S., 82.) 

In this country it is well settled that property In copyright Is the creation 
of the Federal statute passed in the exercise of the power vested In Congress 
by the Federal Constitution in Article I, section 8, "to promote the progress of 
science and useful arts by securing for limited times to authors and inventors 
the exclusive right to their respective writings and discoveries.'* (See Wheaton 


V, Peters, 8 Pet., 591, supra ; Banks v, Manchester, 128 U. S., 244, ^2 ; Thompson 
V. Hubbard, 131 U. S., 123, 151.) 

Under this grant of authority a series of statutes have been passed having 
for their object the protection of the property which the author has in the right 
to publish his prodMction, the purpose of the statute being to protect this right 
in such manner that the author may have the benefit of this proiierty for a 
limited term of years. These statutes should be given a fair and reasonable 
construction with a view to efTecting such purpose. 

The first question presented in oral argument and upon the briefs involves 
the construction of section 4962, Kev. Stat., as amended (U. S. Compiled 
Statutes, 1901, p. 3411) which is as follows: 

" That no person shall maintain an action for the infringement of his copy- 
right unless he shall give notice thereof by inserting in the several copies of 
every edition published, on the title-page or the page Inmiedlately following, 
if it be a book ; or if a map, chart, musical composition, print, cut, engraving, 
photograph, painting, drawing, chromo, statue, statuary, or model or design 
Intended to be perfected and completed as a work of the fine arts, by inscrib- 
ing upon some visible portion thereof, or of the substance on which the same 
shall be mounted, the following words, viz : * Entered according to act of Con- 
gress, in the year , by A. B., in the oflSce of the Librarian of Conrgess, at 

Washington ; ' or, at his option, the word * Copyright,* together with the year 
the copyright was entered and the name of the party by whom it was taken 
out, thus : ' Copyright, 18—. by A. B.* " 

It is the contention of the plaintiff in error that the original painting was 
not inscribed as required by the act, and therefore no action can be maintained, 
and it is insisted that the inscription upon the photogravures offered for sale is 
not sufficient. 

It must be admitted that the language of the statute is not so clear as it 
might be, nor have the decisions of the courts been uniform upon the subject 
In Werckmeister v. Pierce & Bushnell Manf. Co. (63 Fed., 445), Judge Putnam 
held that the failure to Inscribe the copyright notice ui)on the original painting 
did not affect the copyright. That Judgment was reversed by the circuit court 
of appeals for the first circuit by a divided court. (72 Fed., 54.) 

In the case of Werckmeister v. American Lithographic Co. (142 Fed., 827), 
Judge Holt reached the same conclusion as Judge Putman, and in the case at 
bar the circuit court of appeals for the second circuit approved of the reasoning 
of Judges Putnam and Holt and disagreed with the majority of the judges of 
the circuit court of appeals for the first circuit. 

Looking to the statute, it Is apparent that if read literally the words "in- 
scribed on some visible portion thereof," etc., apply to the antecedent terms 
** maps, charts, musical comiwsltlon, print, cut, engraving, photograph, paint- 
ing," etc., and the words of the first part of the sent'ence requiring notice to be 
inserted in the several copies of every edition published apply literally to the 
title-page or the page Immediately following, If it be a book. 

But in construing a statute we are not always confined to a literal reading, 
and may consider Its object and purpose, the things with which it is dealing, 
and the condition of affairs which led to its enactment, so as to effectuate rather 
than destroy the spirit and force of the law which the legislature Intended to 

It Is true, and the plaintiff in error cites authorities to the proposition, that 
where the words of an act are clear and unambiguous they will control. But 
while seeking to gain the legislative intent primarily from the language used 
we must remember the objects and purposes sought to be attained. 

We think It was the object of the statute to require this inscription, not upon 
the original painting, map, photograph, drawing, etc., but upon those publlsfaiBd 
copies concerning which It Is designed to convey Information to the public which 
shall limit the use and circumscribe the rights of the purchaser. 

As we have seen, the purpose of the copyright law is not so much the protec- 
tion of the possession and control of the visible thing, as to secure a monopoly, 
having a limited time, of the right to publish the production which Is the result 
of the Inventor's thought. 

We have been clte<i to no case, nor can we find any direct authority in this 
court upon the question. But the opinion of Mr. Justice Miller in Lithographic 
Company r. Sarony (111 U. S., 53) is pertinent. The court there considered 
whether Congress had the constitutional right to protect photographs and nega- 
tives by copyright, and the second assignment of error relates to the 
sniBciency of the words " Copyrighted 1892, by N. Sarony," when the copyri^t 


was the property of Napoleon Sarony. In treating this question the learned 
Judge used this very suggestive language (11 U. S., p. 55) : 

" With regard to this latter question it is enough to say that the object of 
the statute is to give notice of the copyright to the public by placing upon each 
copy, in some visible shape, the name of the author, the existence of the claim 
of exclusive right, and the date at which this right was obtained." 

If the contention of the plaintifT in error be sustained the statute is satisfied 
only when the original map, chart, etc., or painting are inscribed with the notice, 
and this is requisite whether the original painting is ever published or not. We 
think this construction ignores the purpose and object of the act, which Mr. 
Justice Miller has said in the language Just quoted is to give notice of the copy- 
right to the public — that is, to the persons who buy or deal with the published 

It is insisted that there is reason for the distinction in the statute between 
booths, and maps, charts, paintings, etc., in that a boolj can only be published 
in print and becomes known by reading, while paintings, drawings, etc., are 
published by inspection anh observation. 

It may be true that paintings are published in this way, but they are often 
sold to private individuals and go into private collections, whilst the copies, 
photographs, or photogravures, may have a wide and extended sale. 

It would seem clear that the real object of the statute is not to give notice 
to the artist or proprietor of the painting or the person to whose collection it 
may go, who need no Information, but to notify the public who purchase the 
circulated copies of the existing copyright in order that their ownership may be 

There does not seem to be any purpose in requiring that an original map, 
chart, or painting shall be thus inscribed, while there Is every reason for re- 
quiring the copies of editions published to bear upon their face the notice of 
the limited property which a purchaser may acquire therein. 
This construction of the statute which requires the Inscription upon the pub- 
lished copies is much strengthened by the review of the history of copyright 
legislation which is contained in Judge Putnam's opinion in Werckmeister v. 
Pierce & Bushnell Ck)., (63 Fed., 446) ; that legislation before the statute of 1874, 
in which paintings were for the first time introduced, shows the uniform re- 
quirement of notice upon copies. The apparent incongruities in the statute, 
in the light of its history, have grown up from enlarging the scope of the law 
from time to time by the introduction of new subjects of copyright and engraft- 
ing them on the previous statutes. The same argument which requires original 
paintings to be inscribed would apply to all other articles in the same class in 
the present law, as maps, charts, etc., which were formerly classed with books, 
so far as requiring notice upon copies is concerned. 

Such original maps and charts, etc., may and usually do remain In the pos- 
session of the original makers, and there is no necessity of any notice upon 
them, but the copyright is invalid, as the plaintiff in error insists, unless the 
original is itself inscribed with the notice of copyright. 

For the learned counsel for plaintiff in error says : " If the painting or like 
article is ripe for copyright, it is ripe for the inscription of the notlcew The 
statute requires the Inserting of notice in published things only in respect to 
published editions of books. The term * published * Is not used in connection 
with paintings, statues, and the like." And it is urged there can be no such 
thing as an "edition" of a painting, and copies of published editions are the 
only copies mentioned in the statute. But this phase survives from former stat- 
utes, which dealt only with books, maps, charts, etc. When paintings and other 
things not capable of publication in " editions " were introduced into the statute, 
the language was not changed so as to be technically accurate in reference to 
the new subjects of copyright. 

But the sense and purpose of the law was not changed by this lack of verbal 
accuracy, and we think while the construction contended for may adhere with 
literal accuracy and grammatical exactness to the language used, it does vio- 
lence to the intent of Congress in passing the law, and that the requirement 
of " inscription upon some visible portion thereof " should be read in 'connec- 
tion with the first part of the sentence, which requires notice to be inserted 
in the several copies of every edition published on the title-page if it be a book, 
upon some visible portion of the copy if it be a map, chart, painting, etc. 

As we have said in the beginning, the statute is not clear. But read in the 
light of the purpose intended to be effected by the legislation, we think its am- 
biguitiee are I>e8t solved by the constructions here given, and that the circuit 
court of appeals made no errors in this respect 


Again, it is contended that under the facts stated Wercknieister was but 
the license of Sadler, and as such not within the terms of the statute (section 
4952, as amended 1801, 26 Stat, at Large, 1107, U. S. Ck>mpiled Statutes, vol. 3, 
p. 3406), which is as follows: 

" The author, Inventor, designer, or proprietor of any book, map, chart, dra- 
matic or musical composition, engraving, cut, print, or photograph or negative 
thereof, or of a painting, drawing, chromo, statue, statuary, and of models or 
designs intended to be perfected as works of the fine arts, and the executors, 
administrators, or assigns of any such person shall, upon complying with the 
provisions of this chapter, have the sole liberty of printing, reprinting, pub- 
lishing, completing, copying, executing, finishing, and vending the same; and, hi 
the case of dramatic c<jmposition, of publicly performing or representing it or 
causing it to be performed or represented by others, and authors or their as- 
signs shall have the exclusive right to dramatize and translate any of their 
works for which copyright shall have been obtained under the laws of the 
I'nlted States." 

But we think the transfer in this case accomplished what it was evidently in- 
tended to do, a complete transfer of the property right of copyright existing In 
the picture. There Is no evidence of any Intention on the part of. Sadler to 
retain any Interest In this copyright after the sale to Werckmeister ; and when 
the painting was offered for sale at the Royal Academy It was with a reserva- 
tion of the copyright. 

It would be giving an entirely too narrow construction to this Instrument 
to construe It to be a mere license or personal privilege, leaving all other rights 
In the assignor. That It was the purpose of the parties to make a complete 
transfer Is shown by the Instrument executed when read In the light of the 
statement of the attendant circumstances. 

In this connection it is argued that under the statute above quoted (section 
41)52 as amended March 3, 1891), an author can not, before publication, assign 
the right or privilege of taking a copyright lndei)endent of the transfer of the 
copyrightable thing Itself, ana It Is contended that the terms ** author,** ** In- 
ventor," "designer," refer to the originator of the book, map, chart, painting, 
etc., and that the term '* i)roprletor " refers to the i)er8on who has a copyright- 
able thing made for him under such circumstances as to become the proprietor, 
as, for Instance, one who causes a digest to be complied or a picture to be 

But we think this statute must be construed in view of the character of the 
property Intended to be protected. That It was Intended to give the right of 
copyright to others than the author. Inventor, or designer is conclusively shown 
In the use of the terms ** proprietor " and " assigns " in the statute. 

It seems <*loar that the word *' assigns " In this t^ectlon Is not used as descrip- 
tive of the character of the estate which the " author, Inventor, designer, or 
proprietor" may acquire under the statute, for the "assigns" of any such per- 
son, as well as the i)ersons themselves, may, *' upon complying with the provi- 
sions of this chapter," have the sole liberty of printing, publishing, and vending 
the same. This would seem to demonstrate the intention of Congress to vest In 
" assigns " before copyright, the same privilege of subsequently acquiring com- 
plete statutory copyright as the original author. Inventor, designer, or proprie- 
tor has. Nor do we think this result Is qualified because the statute gives to 
assigns, together with the right of publishing, vending, etc., the right of "com- 
pleting, executing, and finishing" the subject-matter of copyright. 

And a strong consideration in construing this statute has reference to the 
character of the projierty sought to be protected. It is not the physical thing 
created, but the right of iirintlng, publishing, copying, etc., which Is within the 
statutory protection. While not In all respects analogous, this pro])osltlon finds 
illustration in Stephens r. Cady (14 How., 528), In which it was held, where 
the copyright for map had been taken out under the act of Congress, a sale upon 
execution of the copiw^rplate engraving from which It was made did nift pass 
the right to print and sell copies of the map. Mr. Justice Nelson, delivering 
the opinion of the court, said (p. 530) : 

"But from the consideration we have given to the case, we are satisfied that 
the pro|>erty acqulre<l by the sale in the engraved plate, and the copyright of 
the map securwl to the author under the act of Congress, are altogether differ- 
ent and independent of each other, and have no necessary connection. The 
copyright is an exclusive right to the multiplication of the copies, for the bene- 
fit of the author or his assigns, disconnected from the plate, or any other 
physical existence. It is an incorporeal right to print and pnbliah the map, or. 


as said by Lord Mansfleld in Millar v. Taylor (4 Burr., 23S)G), 'a property in 
notion, and has no cori>oreal tangible substance.* " 

And the the same doctrine was thus stated by Mr. Justice Curtis in Stevens 
V. Gladding (17 How., 447. 452) : 

"And upon this question of the annexation of the copyright to the plate it is 
to be observed, first, that there is no necessary connection between them. They 
are distinct subjects of property, each capable of existing, and being owned and 
transferred, independent rtf the other.*' 

While it is true that the proiK»rty in copyright in this country is the creation 
of statute, the nature and character of the property grows cnit of the recogni- 
tion of the seiMirate ownership of the right of copying from that which inheres 
in the mere physical control of the thing itself, and the statute must be read 
in the light of the intention of Congress to i)rotect this intangible right as a 
reward of the inventive genius that has i)n)duce<l the work. We thinlv every 
consideration of the nature of the property and the things to be accomplished 
supports the conclusion that this statute means to give to the assigns of the 
original owner of the right to copyright an article the right to take out the 
copyright secured by the statute, iudependentiy of the ownership of the article 

It is further contended that the exhibition in the Royal <;allery was such a 
publication of the painting as prevents the defendant in error from having the 
benefit of the copyright act. This question has been dealt with in a number of 
cases, and the result of the authorities establishes, we think, that it is only in 
cases where what is known as a general publication is shown, as distinguishiHl 
from a limited publication under conditions which exclude the presumi)tion that 
it was intended to be dedicated to the public, that the owner of the right of 
copyright is deprived of the benefit of the statutory provision. 

Considering this feature of the case, it is well to remember that the i)roperty 
of the author or painter in his intellectual creation is absolute until he volun- 
tarily parts with the same. One or many persons may be permittetl to an 
examination under circumstances which show no intention to part with the 
property right, and it will remain unimpaired. 

The subject was considered and the cases reviewed in the analogous case of 
Werckmeister r. The American Lithographic Company (134 Fed., 321) in a 
full and comprehensive opinion by the late Circuit Judge Townsend, which 
leaves little to be added to the discussion. 

The rule is thus stated in Slater on the Law of Copyright and Trade-mark 
(p. 92) : 

** It is a fundamental rule that to constitute publication there must be such a 
dissemination of the work of art itself among the public as to justify the belief 
that it took place with the intention of rendering such work common property.** 

And that author instances as one of the occasions that does not amount to 
a general publication the exhibition of a work of art at a public exhii)ition 
where there are by-laws against copies, or where it is tacitly understood that 
no copying shall take place, and the public are admitted to view the painting 
on the implied understanding that no improper advantage will be taken of the 

We think this doctrine is sound and the result of the best considered cases. 
In this case It api)ears that paintings are expressly entered at the gallery 
with copyrights reserved. There is no permission to copy; on the other hand, 
officers are present who rigidly enforce the requirements of the society that 
no copying shall take place. 

Starting with the presumption that It is the author's right to withhold his 
property, or only to yield to a qualified and special insi)ection which shall not 
permit the public to acquire rights in it. we think the circumstances of this 
exhibition conclusively show that it was the purpose of'the owner, entirely 
consistent with the acts done, not to permit such an lnsi)ectlon of his picture 
as would throw its use open to the public. We do not mean to say that the 
public exhibition of a painting or statue, where all might see and freely copy 
it, might not amount to publication within the statute, regardless of the artist's 
purpose or notice of reservation of rights which he takes no measure to pro- 
tect. But such is not the present case, where the greatest care was taken to 
prevent copying. 

It is next objected that the form of action In this case was the ordinary action 
for replevin under the New York code, and as the plaintiff did not have the 
right of property or possession before the beginning of this action, no such action 
would lie. Whether this action was the one In the nature of replevin for the 


seizures of the plates and copies indicated in the case of Bolles t\ Outing Com- 
pany (175 U. S., 262, 266) we do not find it necessary to determine. After ver- 
dict, and upon motion for a new trial, plaintiff In error, defendant below, mor^'ed 
to set aside the verdict " on the jjround that replevin under the statutes of the 
State of New Yorli is not an appropriate remedy or a lawful and lejral remedy 
for talcing possession of the alleged incriminating sheets or pictures, and that 
the proceedings taken in that behalf l)y the plaintiff were illegal and invalid, 
and that the plaintiff can not avail of any benefit of that proceeding, and the 
Introduction in evidence of the replevin proceedings was an error." The motion 
was denied and exception duly taken. 

The learned counsel for the plaintiff in error admits that this question was 
not formally raised until the defendant's motion for a new trial, but maintains 
that the same question was raised by the objection to admission in evidence of 
the replevin proceedings by the marshal for the western and southern districts 
of New York, respectively. 

Examining this record, it is perfectly apparent that no objection was made 
to the form of the action until it was embodied after verdict In the motion for 
a new trial. Upon the admission of the writ of replevin, addressed to the mar- 
shal of the western district of New York, and affidavit, the objection stated 
was " on the ground that the process of replevin that was executed by the mar- 
shal in Buffalo was an invasion of defendant's constitutional right, was an un- 
warrantable search, an illegal act, and nothing done under It, or information 
obtained by virtue of it, can be used in evidence against defendant under the 
fourth and fifth amendments of the United States Constitution." 

The same objection was made when the writs of replevin, affidavit, and return 
were offered in evidence concerning the southern district of New York, and it 
was said: "Defendant's counsel objects on the same grounds as stated to the 
introduction of the stipulation — namely, that the pa|)er8 constitute an illegal 
proceeding, an invasion of the defendant's constitutional right as provided by 
the fourth and fifth amendments, and plaintiff can not avail of them as evidence 
in this case on accoimt of their illegality." 

The argument which followed, could it be assumed to broaden the objection, 
was far from complaining of the form of action as such, but rested upon the 
Constitution and the character of the seizure of the goods of which it was main- 
tained the plaintiff was not entitled to possession until after a judgment of 

The record shows that the objection to the form of the remedy was first taken 
In any adequate way uiK)n the motion for a new trial when It was too late. 

In conclusion. It was suggested rather than argued that the constitutional 
rights of the plaintiff in error were violated by the seizure of the goods, and 
reference was made to the fourth and fifth amendments. We think we need only 
refer in this connection to Adams r. New York (102 U. S., 585-507) and Hale v. 
Henkel (201 U. S., 43). 

Finding no error In the judgment of the circuit court of appeals, the same Is 


Mr. LiviN<;six>NE. I wish to point out also, Mr. Chairman, that your 
definition of the publication of a work of art, which is most admi- 
rable, and for which we arc very thankful, chan^je^s the situation 
somewhat, making it less necessary than under the existing law, 
which the Supreme Court has construed, to have the notice affixed to 
the original. 

In the future, the original work of art will not be published until 
there is an authorized vending or distribution of the copies. It will 
be ahnost impossible, with any ordinary precaution, for a person who 
wishes to copv an original work of art to be unaware of the notice, 
because he will be compelled to refer to one of two things — to the 
copyright office or to the copies; and in either case he becomes im- 
mediately advised of the copyright, 

I will speak of the manufacturing provision later. 

The Chairman. You had lu'tter take up that now, and continue 
what you have to say on that subject, as we are pressed for time. 

Mr.' Livingstone.' Then, if I may, I will take up the entire matter. 


The Chairman. You may take up whatever matter you see fit, ex- 
cept the question of the music provisions. 

Mr. Livingstone. Before I speak of the manufacturing section I 
want to alhide to two other points which are probably taken care of. 
One is the matter of the minimum recovery of damages. 

Representative Clkrier. We have restored that. 

Mr. Livingstone. We wish to have that provision inserted, and our 
sole reason for alhiding to it again is to call the attention of the com- 
mittee to the fact that we hope nothing will occur to disturb its pres- 
ence in the bill for the reasons on file. 

Representative Currier. We have also taken care of the matter 
with reference to the allowance of costs. 

The Chairman. Xo one has spoken in opposition to it, and unless 
some one does there is no need for you to spend any time in the dis- 
cussion of the question. 

Mr. Livingstone. Another point to which I desii'e to call attention 
is the matter of the extension of the existing copyright where a work 
has been assigned. The suggestion made last nicht seems to meet the 
case, and I merely wish to point out that you snould not limit it by 
the term *"" encyclopedic " alone, but that you should include also the 
term " composite," because there are articles, such as maps, which mav 
be the product of the work of several different persons, and still 
might not be embraced in the term " encyclopedic." They would, 
however, be embraced under the term " composite." 

Mr. Putnam. Composite is the word that we have been instructed 
to put in, and one of the suggestions that we have been instructed to 

Mr. Livingstone. In the manufacturing clauses we wish to protest 
very strongly against any addition to the sections as they are now 
drawn. I am speaking, of course, of the clauses as they affect the 
field of the graphic arts only. 

Representative Currier. Are you speaking now particularly with 
reference to lithographs? 

Mr. Livingstone, rartly to that; yes, sir. The suggestion made 
by Mr. Walker last night, when this matter was under discussion, 
was that you include, after '^ lithograph," the words '^ or any other 

Now, the first effect of that would be to shut out one thing that 
we haa hoped was closed and properly taken care of, and mat is 
the granting of a copyright on photographic negatives taken without 
the limits of the country. That would, of course, exclude them im- 
mediately. We have had a number of years' experience in operation 
under such an exclusion, and it has had just the contrary effect in 
our field from what it was designed to have. 

In two of the bills presented — namely, the Kittredge and Barch- 
feld bills — we notice the addition of the photo-engraving clause. We 
do not presume to say anything as to photo-engraving or any other 
kind of engraving of music, because it is out of our field and we do 
not know about it; but we strongly urge that such a provision be 
not added, so far as it applies to the graphic arts, for pictorial re- 

I wish to personally advise very strongly against that, not on the 
ground that I am a publisher, but on the gi'ound that I am an Ameri- 
can manufacturer, operating my own plant and employing my own 


workmen, and also because there are other members of our associa- 
tion in exactly .the same position. 

We do not "believe such provisions will be helpful. It is not be- 
cause we do not wish the utmost protection for the American laborer 
and the American manufacturer, but we believe that this method of 
securing it in our field is the wrong one. 

The Chairman. Do you object to the words " for music engraving 
processes ?" 

Mr. Livingstone. No, sir. 

The Chairman. Do you know of any reason why they should not 
be in this bill ? 

Mr. Livingstone. I would not presume to speak of the music 

The Chairman. I simply ask you whether you know of any reason 
why they should not be in' the bill? 

Sir. Livingstone. I have not studied the music provision, and I 
would not presume to express an opinion. 

The Chairman. I ask you as a manufacturer, and I thought, per- 
haps, In your study you had taken into consideration the whole neld 
of music. 

Mr. Livingstone. That is a very distinct field, and I did not know 
anvthin^ about the manufacture of it. 

Itepresentative Cfrrier. You do not make it clear to me why, if 

?ou protect lithographers, you ought not to protect photo-engravers. 
That is the difference? 

Mr. Livingstone. I think that I have never and our association 
has never concealed the fact that we think this lithogi'aphic clause 
in including pictorial lithographs is wrong; but we accept it and 
will support it, and be glad to support it, as it stands now. 

Representative Sulzer. You say you take these foreign negatives 
and bring them over here and reproduce them ? 

Mr. Lr'ingstone. Yes, sir. 

Representative Cirrikr. If we were to insert a provision which 
would give protection to photo-engravers, what would be your objec- 
tion to it ? 

Mr. LiviN(;sT0NE. T have no objection, in so far as it applies to 
music, a thing of which I know nothing: but I do have an objection 
to it, if you are ^ing to apply it to color engravings, to pictures, or 
to any kind of pictorial illustration. 

The Chairman. If it is in the bill at all, it would apply to both. 

Representative Sulzer. After you bring those negatives over from 
foreign countries into the United States, the reproduction is done en- 
tirely by American workmen, is it not ? 

Mr. LiviNGHHJNK. It is. 

Reprewntative Silzer. Altogether? 

Mr. Livingstone. Yes: but I will also explain that the bill, as it is 
now drawn, will give foreign photographers copyright protection, if 
they see fit to avail themselves of it, on condition that there are re- 
ciprocal relations l>etween the countries. 

Tlie Chairman. Tliat work will have to l^e done in this country. 

Mr. Livingstone. Not in the case of photographs, as you have 
drawn the bill. If it is reproduced by photoenj^ving, it is a dif- 
ferent thing. I understand Mr. Sulzer to be asking simply about the 
production of photographs. 


Representative Sulzer. Yes; the production from these negatives 
taken in foreign countries — ^they are produced here in this country? 

Mr. Livingstone. That is the intention. 

Representative Sulzer. And tliat work is done entirely by Ameri- 
can workmen ? 

Mr. Livingstone. Yes, sir. 

Representative Sulzer. So far as you know, the American work- 
men have no objection to that? 

Mr. Ln^iNcsTONE. We want it very badly, and the photographers 
are on record as stating that they want it. 

Representative Sulzer. Regardless of the manufacturers and the 
photographers, the Americans want it, because it gives them greater 
work, do they not ? 

Mr. Livingstone. It gives the American Photograph Printing 
house work, which thev are now debarred from getting under the 
existing law. With reference to the matter of photoengraving which 
you are talking about, I wish to point out that which not only applies 
to photoengraving, in the way of the reproduction of pictures, but 
also applies to any other graphic process for the reproduction of pic- " 
tures, and to call your attention to the fact that there is a very essen- 
tial difference between the reproduction of the thought of an author 
by book and the reproduction of the thought of an author by pictorial 

You may print a literary work by the type of any country you 
please, and the thought is the same. It is not modified by the type 
from which it is printed, whether printed in England or in the United 
States. . 

But when you come to the pictorial expression of an author's 
thought there is a physical diflference. The method employed for 
translating the author's thought may be very distinctly qualified by 
the process. That is to say, a delicate water color mav be successfully 
translated in one process, and it may virtually fail of adequate trans- 
lation in . another graphical Drocess. That leads to the selection of 
processes for special work, oome of those processes are best operated 
in this country and some are best operated abroad. It all depends 
upon the particular work you want done and the kind of representa- 
tion you want. 

For example, there is a process popularly known as the Groupil 
process upon the Continent, a secret process, which is not used in this 
country at all. That is specially suited for one kind of reproduction, 
and anybody who wants that reproduction must go there to get it. 
It is not done anywhere else. The company with which I am con- 
nected has a special secret process, which is only performed in our 
plant, and anyoody who wants that particular expression has to come 
to us for it. You must, therefore, distinguish between the case of 
translating a literary author's thought through the types and the 
translating of an author's thought through the methoa of pictorial 

Another point involved, which is rather technical, relates to the 
term photo-engraving, and it is this : The general term, " photo- 
engraving," when applied to art, with which I am of course more 
conversant than anytnin^ else, has a very indefinite meaning and is 
a very uncertain term. I would not undertake to say what should be 
the interpretation, but we would be very much afraid of it unless 
it is very precisely defined in some way. 


Representative CintRiER. Would the section as now drawn prevent 
the bringing into this country of pictures such as you have men- 
tioned, which are produced by the secret process of Goupil & Co.? 

Mr. Livingstone. No, sir; and I am not objecting to the section as 
now drawn. It is this amendment, " or other process," that may be 
added, to which I am objecting. 

Representative Currier. I do not think you need take up very 
much time in the consideration of any amendment which would in- 
volve words of that kind ; but you may confine your discussion to the 
paragraph referring to the case where the subjects represented are 
located in a foreign countiy and to the amendment by the insertion of 
the words " produced by photo-engraving." 

Mr. Livingstone. Before I go further in the matter of photo- 
engraving I will present a letter I received this morning, which is 
froni one of the members of our association, Mr. Edmund B. Osborne, 

President of the American Colortype Company, of New York and 
ihicago. To give it point I will say that the American Colortyj)e 
Company is the largest pictorial engraving company on this conti- 

In this letter, which is addressed to W. A. Livingstone, president 
of the Print Publishers' Association, Washington, D. C., and is dated 
March 6, 1008, Mr. Osborne says : 

I am informed that the Kittredge copyright bill, now under consideration, 
proi)ose8 to exclude from the benefits of the copyright act the publication of- the 
works of foreign artists or authors, except as tiie mechanical worlc of publica- 
tion shall be done in the Unlteil States. 

I wish to express very emphatically my conviction that this is wrong in 
principle. The business of this company, viz., the reproduction, printing, and 
publishing of works of art, is Just the sort that is designed to be protected by 
this measure, and we would be among the largest beneficiaries of such an act. 
I do not believe, however, that it is Just or wise to attempt to secure the pro- 
tection of American labor, engaged in the printing and publishing interests, in 
this way. I believe that the United States ought to afford the protection of its 
copyright law to foreign artists and authors on exactly the same basis It affords 
protection to American artists and authors, provided tiiat the countries of whic^ 
such artists or authors are citizens extend similar privilege to American artists 
and authors. 

I believe in protecting American labor and in recognizing the difference 
l)etween the cost of American labor and the cost of foreign lal>or, but I do not 
believe that this should be mixed up in the copyright act. I think that the 
protection of American labor employed in these industries should be accom- 
plished as we do it for other kinds of ]al>or, viz, by our protective tariff. 

It se<'ms to me that we have two separate issues here, and that they ought 
not to be confused. First we ought, in coo];)eration with the other nations, to 
secure for artists and authors the undisputed control of the products of their 
genius, and full rights to the fruits of them, and that can be done by our copy- 
right law. 

On the other hand, we owe it to ourselves to protect our own labor and not 
to iiermit the cheap workingmen of Europe to com|>ete on even terms with our 
higher-priciMl workingmen in this country; this we can accomplish by a wisely 
devised protei'tive tariff. 

I hoi>e you will KUfceed in convincing the committee of the unwisdom of 
trying to combine these two issues in one bill. 

To speak for a moment on the cutting out of the exception or pro- 
viso, which permits foreign-made lithographs to enjoy copyright 
I)rotection in this country, when the subjects are scenes which are 
ocated abroad. Tlie company with which I am connected is in the 
bu.siness of ivproducing paintings and technical work, and conse- 
quently I claim to be fully informed both as to the business and the 
practical end of this matter. 


It has been suggested here that in the case of a painting located 
abroad, if a sketch is made of that painting and brought into this 
country, the lithographer may take that sketch and reproduce the 

That is possible, but that is not the way it is done in practice if 
good work is desired. Not only that, but that particular method 
makes it impossible to get the best work. The only way it can be 
done, where really good reproduction is demanded, is as follows: 

If possible the painting is taken to the factory itself. I have had 
hundreds of paintings in our factory for that purpose which were 
transported over considerable distances. I have not only had paint- 
ings, but I have had expensive textiles, costly rugs and things of that 
kind, which were taken out of museums, if you please, and which it 
was very difficult to have transported to the factory. 

Certainly we would not put ourselves to all of that trouble and the 
owners of the property would not submit to that inconvenience if 
there was not a gi^ave disability without it. There are cases con- 
stantly arising where it can not be done. I will give you, as an illus- 
tration, a typical case with which we were recently confronted in 
reproducing a painting in the Metropolitan Museum of Art. 

We could not have the painting sent to the factory, and so we had 
very careful chromatic negatives made, and then we printed from 
those negatives. We had a very careful color sketch made on top of 
the print from those negatives, which of course faithfully reproduced 
the drawing, and we then sent the workman, who was going to trans- 
late that work, to the Metropolitan Museum. He did not go once 
only, but went four separate times from Detroit. After that the 
superintendent of the factory was compelled to go to check up the 
final work. 

Of course I am now speaking of work where accuracy and truth- 
fulness is desired, which of course is necessary in art reproduction or 
in work regarding a technical science. 

If we were subjected to all of that trouble in this case, what kind 
of a result do you suppose we would have gotten if we had been 
compelled to make that reproduction from a subject in a gallery in 
St. Petersburg or in the Vatican or in any other foreign gallery ? 

I might multiply instances of that kind, but instead ot dbing that 
I will simply say that if the committee desires it I will furnish them 
written copies covering actual cases. 

I will say further that if you take that clause out of this section 
you will surely prohibit certain kinds of American publishers from 
doing work of that character. You can not find in America now 
more than a very few art publishing houses. WTiy is it? One of 
the reasons, of course, is the youth of the nation, and another reason 
is the lack of art education in this country, which is being very 
rapidly corrected ; but one of the greatest reasons is that the foreign 
art publishing house gets protection in every continental country 
for its work. It does not make any difference whether its photo- 
gravure is made in England or in Germany or in Austria or in 
France. It gets protection in all of those countries. If we are lim- 
ited to protection in this country only, I want to state positively that 
we never can develop art publishing of magnitude as it is abroad. 
Our 'very existence depenas on the protection it may get from a 
copyright, and without it we have to get out of business. 

80207—08 8 


If this protection is limited to this country, then this field, for 
some years to come, is going to be a very narrow one. We get no 
practical protection abroad now. You can not point out to me a 
single American art publishing house that has been able to maintain 
a large market abroad. Not one — and I am well acquainted with all 
of them — and the reason why is that we need good protection abroad 
in the pictorial graphic arts. 

Representative Currier. I do not quite follow you when you say 
you can not get protection over there. 

Mr. Livingstone. I will explain that. At the present moment the 
American photographer can get no copyright protection for his pho- 
tograph in England. The American illustrators, such as Gibson and 
Harrison Fisher, can get no protection for their drawings in Eng- 
land, unless those drawings are first published as illustrations in an 
English book. 

Representative Currier. It appears, from your statement, that we 
are giving the citizens of certain foreign countries greater rights 
under our laws than they have given to us. 

Mr. Livingstone. That is true in cases, and I would like to call 
your attention to it. 

Representative Currier. I should be glad to have you elaborate on 
that point. 

Mr. Livingstone. The point I intended next to speak of covers one. 
A similar condition of affairs exists in Canada. We are very close 
to Canada, and by reason of the similarity of taste, the American 
publications have a good chance of selling in Canada and England, 
and a somewhat less chance of selling on the Continent. In time the 
Continent will probably give us business as well. 

If we go to England, at the present moment, and put anything on 
the market, the moment it is demonstrated that it is successful, the 
disreputable houses — and there are houses which are not reputable, 
will kill the market for us. 

I can speak from my own experience in one particular case where 
a series or plates were made several years ago for Canada, and about 
the time we had established some trade, piracy commenced; and 
finally we were obliged to give up the field altogether. 

We want that field in Canada and in England, and we are shut 
out from it. We want a law here which will make it possible for 
the Canadian publishing houses which are reputable, and the Eng- 
lish publishing houses which are reputable, to get protection here, 
bex'ause if we arc not in a position to offer them that, we have no 
earthly show of getting them to change their laws, and permitting 
us to get such protection as will accomplish our purpose. We 
have asked reputable foreign houses with regard to this matter, 
and they have said they would help us in their countries. 

Kepivsentative Currier. Do sucli conditions prevail in any con- 
tinental country? 

Mr. Livingstone. The conditions are rather mixed on the Con- 

The Chairman. Do you know what it is in Germany? 

Mr. LiviN(iHTONE. I can not speak in regard to that offhand 
without rt»ferring to some memoranda I have. 

Mr. PiTNAM. I think the designer is protected in Germany, ir- 
respective of his nationality. 


Mr. Livingstone. The designer is protected and the painter is 
protected, but I am not positive as to the American pliotographer, 
nor am I sure as to some special processes. 

The Chaikmax. Can you inchide a statement with reference to 
that in your remarks? 

Mr. Livingstone. A written statement. 

The Chairman. Yes; we would like to have that included in 
your remarks. 

Mr. Livingstone. I can show that they are protected there with 
reference to particular processes, as, for example, in photogravure. 
I can also show that, so far as other countries are concerned, which 
are subscribers to the Berne Convention, their photogravures and 
etchings enjoy protection. 

You have given me a good deal of time, and I shall, in closing, 
merely call your attention to two other conditions. The purpose 
and the sole reason for including the manufacturing provisions in 
a copyright law is to protect American industries, and of course the 
value of that depends on the measure of protection you get. If you 
get protection by it which is effective, then you arrive at the result 
you are working for. If you do not get the protection you desire, 
then you put in. very troublesome provisions which are now ineffec- 
tive. I wish to cite a case to illustrate how the company with which 
J am connected suffers very severely from the importation of mil- 
lions of lithographic cards which flood our market with the excess 
product of the (rerman lithographic factories. Of course they are 
willing to dispose of them at very low rate after they have taken care 
of their home market. 

Representative Currier. They sell abroad, then, for less than they 
do at home ? 

Mr. Livingstone. Yes. Now, they are debarred by the operation 
of the existing law from copyright protection, but it has not put a 
stop to their importation, and those who are manufacturing here are 
supposed to be protected. 

Let me cite another case. At one time the continental companies 
used to produce all the playing cards for this country, or practically 
all. Do they do it now? No; the bulk of them are made in this 
c^ountry. Wnat has made the difference? It is the effect of tlie pro- 
tective tariff, under which a duty of 10 cents a pack and 20 per c^ent 
has been imposed, irrespective of the value of tlie pack. That duty 
has thrown the balance this way, and now that business is all prac- 
tically done here, except for a few fancy sets. 

If you will give us an adequate duty on the picture cards, we will 
take the business also; but we will never get it through a manufac- 
turing clause in a copyright bill. If you enlarge that restriction in 
the graphic arts, I am very certain we will never get from Canada or 
En^and certain copyright provisions that we have been working for 
for some time. 

My time is up, and, in closing, I want to say to the committee that 
this bill, as it is, is a very great advance over existing conditions, and 
we thank you for it. 

The Chairman. I understand that Mr. Lucking wants to be allot- 
ted about five minutes in order to address the committee upon the 
penalty clause. 



Mr. Chairman, I represent the American Association of Direc- 
tory Pul)lishers of the United States. They desire, through me, to 
express their general satisfaction with the measure proposed. 

We have attended the conferences, and wliile tliere are some por- 
tions of the bill to which we have expressed objections, we are 
prepared to yield all those objections for the general good, provided 
section 31 l>e so amended that a jail sentence may be imposed in 
proper cases on the willful pirate. 

It would be a ^eat protection for us if the prospect of a jail 
sentence was hanging over the head of every criminal infringer. 

We do not object to the words " knowingly and willfully," which 
are found in the misdemeanor clause, as did one of the gentlemen who 
spoke to-day. The onlv thing we ask is that the sentence shall, in 
the discretion of the juiige, iiK*lude a jail sentence. 

Representative Currier. I suppose an alternative sentence would 
Ije satisfactory. 

Mr. Ia'cking. I do not mean that a jail sentence must be imposed, 
but that there should be a provision for an alternative sentence. 

Representative Currier. In the present copyright law there is no 
alternative sentence. 

Mr. Lucking. I do not understand that these words " knowingly 
and willfully " require anything more than any criminal law would 
require. In order to convict a pei'son of a crime he must have a 
criminal intent. We are perfectly willing that those words should 
remain, l>ecaus/.» the ones we want to reach are the swindlers, who, 
knowingly, willfully and wickedly, with malice aforethought, appro- 
priate the fruits of our labor and of our money. 

After we have expended thousands of dollars, nearly all for wages, 
in the com{)ilation of data and have produced it in the form of a 
book, is there any reason in the world why that investment should 
not be protected the same as anv other kind of an investment in 
pro|)erty, whether it be corn or wlieat or oats or merchandise or any 
tanij^ible things 

He do not seek to reach any person who innocently appix)priates 
our property or who mistakenly prints something which is copy- 
right; but we do want to reach the willfully guilty person, against 
whom, under the law, the case must be made out beyond a reasonable 
doubt. The penalty is to be inflicted only in the discretipn of the 
judge. An injunction is of very little value to us, owing to the 
peculiar reasons which pertain to our business. We can not prove 
our casi» until the piratical edition has been put on the market, for 
the reason that if two [)ersons set out in good faith to produce a 
directory covering a given territory, if thev do it well, will produce 
practically the same results. It is only by laying traps for the pirate 
that we sn<reed in catching him at all, and we can catch him only 
after he has ivaped the fruits of his [)iracy. 

We are as-<ailed by organized gangs of swindlers and pirates, some 
of them with money, but most o? them irresponsible. Some of them 
are backed l)y [persons with money, who are not disclosed and whom 
we can not reaclu Therefore damages can seldom be recovered to 
compensate us. 


There has recently been a conviction at Akron, Ohio, of a person 
who had appropriated directory matter; but in that instance he was 
found guilty of forgery. That is, he took orders apparently for 
complimentary copies and then tore off a portion of the orders and 
printed in other matter over the signatures; so that was really 

I have already pointed out that no harm can come to an innocent 
pei*son by the insertion of this clause for which we ask, because it 
IS only willful ones, who are proven guilty beyond a reasonable 
doubt, who are to receive such a sentence, and it is to be at all times 
in the discretion of the judge. 

The benefit of this provision will be chiefly because it will serve to 
prevent infringement. Mr. Bronson Howard has stated that under 
the present statute protecting dramatists there has never been but 
one case in ten years where a person was prosecuted, because the very 
fact of the existence of a jail penalty has prevented piracy, whereas 
before that it was a daily occurrence. 

I have been honored by a gentleman with a statement of the rea- 
sons which have been urged against the jail-sentence provision. It 
comes from a gentleman whom I know and whose name I can give to 
any member of this committee, but I do not wish to give it publicly. 
He gives the. reasons which hflve been urged why a jail sentence should 
not be included, and I want to ask your attention while I read and 
briefly answer them. He says, firstj that the bill as reported gives 
us many additional and effective remedies, so that there is no neces- 
sity for a strictly penal section to the law. 

These new remedies are of little value to us for the reasons stated ; 
nor is the delivery of the plates any benefit to us, because the plates 
of directories are never used a second time, or, if they are, they are not 
so used once in a hundred times. The mischief has all been done be- 
fore the plates can be destroyed. 

Another reason he ffives is the existence of the remedy by injunc- 
tion. I have shown that we can not recover damages to compensate 
us for our loss, and that we would be compelled to hold irresponsible 

This fine of a thousand dollars is often ridiculously inadequate, in 
a case where a large directory is pirated. 

The second reason the gentleman gives is that there is no adjudica- 
tion in advance as to the right to a copyright, and for that reason 
there ought not, he says, to te a jail sentence inflicted. To my mind 
that reason operates in the opposite direction, because it affords the 
man charged with the offense another opportunity to escape. You 
must show- that the copyright is valid or there can be no conviction. 
Hence the infringer may often escape by raising some doubts as to 
the validity of the infringement. Thus the reason invoked would 
operate to the advantage of the accused and not against him. 

Representative Sulzer. Suppose section 31 of Senator Smoot's 
bill was changed so as to read : 

ShaU be deemed guilty of a misdemeanor, and upon conviction thereof shall 
be subject to a fine of not more than $1,000. or one year's imprisonment, or both, 
such fine and imprisonment to be in the discretion of the court, and shaU stand 
committed to Jail until such fine and costs are paid. 

Mr. Lucking. That would be eminently satisfactory with some 
slight modification of phraseology. 


The Chairman. There is one further matter I would like to call 
your attention to in this bill. Would you think it proper to have a 
minimum fine and a maximum fine rather than to sav a fine of $1,000? 

Representative Sulzer. I said, '^ Not more than $1,000." That 
would cover your suggestion, would it not, Mr. Lucking? 

Mr. Lucking. It would absolutely. I want to close this statement 
by citing the third and last reason he gives in opposition to this 

Proposition. He is a gentleman for whom I have the highest resi>ect. 
'he third reason he gives is that patents and trade-mai*KS are not so 
protected. To answer this in a word, because one species of proi>erty 
is not protected by jail sentence as all other investments and prop- 
erty are protected, is that any reason why a copyright should not be 

The reason why patents and trade-marks are not so protected is 
that there are manv innocent infringements of them, and there is 
often very great difficulty in the case of an infringement of a patent 
to demonstrate that it is an infringement. The greatest experts 
differ on those questions. 

Representative Currier. What j'ou say about patents is undoubt- 
edly true, but it does not apply with equal force to the willful coun- 
terfeiting of a trade-mark. 

Mr. Li^cKiNO. I thank the committee" for granting me this oppor- 
tunity to pre^nt this matter. 

The Chairman. Mr. Malcomson, we are pressed for time; but we 
will hear you if you will not occupy more than ten minutes. 

CITY, N. Y. 

Mr. Chairman, I represent one of the oldest and largest houses of 
manufacturing Iithogra|)hers in the United States, the firm of 
McLoughlin Brothers, of New York. They are the manufacturers 
of the books which are known as children's and infants' books, with 
which you have all been familiar from childhood. For over forty 
years this house has been in this business in New York, and their 
goods are sold and have been sold for years from Maine to the Pacific 
coast. Of course this matter is one of importance to them. 

If the chairman will turn to section 10 I will try to conclude, as 
soon as possible, what I have to say on this subject. I want to refer 
to the exception which was discussed yesterday by several of the 

Representative Curlier. You mean the provision, " where subjects 
are located in foreign countries?" 

Mr. Malcomson. Yes; the argument was that the exception should 
remain in the law, on the ground that if the lithograph or pictorial 
illustration was an illustration of something in a foreign country it 
ought to come in without the process of lithographing being ,i>er- 
formed in this country. 

I felt when they wen». speaking on the subject yesterday that this 
was a very small portion of the goods or articles that this section 
referred to. Lithographs have always been in what is known as the 
manufacturer's clause from the time the provision was first inserted 
in a copyright law, and it was there because it is an industry — we 
may not say that it is an infant industry — but yet it certainly is an 
industry for infants, for this class of goods goes to the children. 


The section reads substantially the same in the bills introduced by 
Senator Smoot and Mr. Currier. In the other two bills, one of 
which was introduced by Senator Kittredge and the other by Mr. 
Barchfeld, the provision is slightly different, but in all of these sec- 
tions occurs the exception. 

Now, section 16, following its wording logically, refers to books, 
and it requires that books which have been copyrighted in this coun- 
try shall be printed here, or if the books are produced partly by the 
photolithograph process and partly by typesetting then the process 
of lithographing shall be fuUv p(*rformed in this country. 

The Chairman. It evidently refers to more than books, because it 
refers to section 5, subsections a and b. Going back to subsections 
a and b, section 5, we find that books include encvclopedic works, 
directories, gazatteers, and other compilations, anS that section b 
covers periodicals, including newspapers. 

Mr. Malcx)M8on. Yes; but we always look upon anything of that 
nature that is printed, as a book, and it is really classified under the 
head of " books." Section 16 says that printed books or periodicals, 
specified in section 5, subsections a and b, are referred to in section 
16, and requirements are made in relation to those books. 

Line 5, on page 9, provides that the requirement^ shall extend also 
to the illustrations within the book, consisting of printed text and 
illustrations produced by lithographic process, and also to separate 
lithogra*phs, except where the subjects represented are located in a 
foreign country. 

Now, to say the least, that is an exceedingly confusing statement 
and a confusing exception. 

Representative Currier. If this exception should be confined to 
scientific books, you would not object to it? 

Mr. Malcomson. Not at all. 

Mr. George Haven Putnam. Or to art books? 

Mr. Malcomson. These are all art books. This, to a certain ex- 
tent, is an art book. There is always a desire to put in something 
that will bring in more than would reasonably be supposed to be cov- 
ered by the language. When the gentlemen were talking to you about 
this exception, they confined their remarks to sketches by physicians, 
or some particularly scientific book, whereas the fact is that the great 
mass of work is confined to books of the class I have here [showing 
some nursery books]. How these gentlemen are going to tell whether 
one of these illustrations of a subject in trhese books is located in a 
foreign country is more than I know. 

The Chairman. The manufacturer himself certainly would know 
whether the scene was in this country or a foreign country, would he 

Mr. Malcomson. I doubt even that. The manufacturer of this 
book could not tell to-day whether some of these scenes were taken 
from abroad or not. Take any one of these books, and how could you 
tell whether the artist, when he made that subject, had in mind a scene 
which was located in a foreign country? 

The Chairman. I think it would be very hard indeed to prove that 
it was Bot, if the manufacturer said it was. 

Mr. Johnson. Take the case of lithographs produced by Mr. Joseph 
PenneU, a most distinguished American artist now living tempo- 


rarily in London, and suppose that Mr. Pennell desired to illustrate 
a book on the cathedrals or Europe, many of which he has drawn in 
black and white, would not the exclusion of that clause exclude an 
American citizen from a copyright in his own country, when the litho- 
graphs could not be produced here? 

Mr. Malcomson. Not at all; lithographs are not produced by the 
manufacturing lithographer going to a city or town and setting up 
his lithographic plant in front of a cathedral. The sketch made by 
the artist is taken into the factory, and there the color scheme is car- 
ried out, and there the process, which is referred to in this section, 
is performed. That sketch of the artist is a mere preliminary to the 
production of the lithograph. 

The Chairman. I think that will come up for discussion later. 
We will now hear from Mr. Jenner. 


CITY, N. Y. 

Mr. Chairman and gentlemen- 

Mr. (lEOKOE H. Putnam. We will be pleased to learn what bodies 
he represents. 

The Chairman. Will you state to the reporter whom you repre- 
sent ? 

Mr. Jenner. Mr. Chairman and gentlemen, if I may introduce 
myself I will say that I have no client. I bear the commission of no 
manufacturing interest. I am simply and only one of the people, 
and in that humble, but, I trust, respectable, relation to the suoject I 
ask you for your patient consideration. 

Representative Currier. This is the first time they have appeared. 

Mr. Jenner. I can not help but feel that my clients, if I may term 
the people my clients, will receive your patient consideration, even 
if their advocate fails to deserve it. 

My attention, Mr. Chairman and gentlemen, was first attracted 
to this bill when it first emanated from the Librarian's office, and as 
I perused it in the course of what I may term professional curiosity, 
1 observed that it proposed to deprive me of the right of importing 
from England or France a foreign-made copy of foreign books. 

Subsequently I discovered other objections to the bill, from the 
people's point of view, and with your permission I will confine myself 
to those questions which I consider to be peculiarly related to the 
interests of the people, and first I will take up the subject which 
first attracted my attention. Every American citizen, from the very 
foundation of the government, now nearly a century and a quarter 
ago, has enjoyed and has exercised, to some extent, the liberty, for 
liberty it was — and I do not use the term privilege — of importing 
from foreign countries foreign-made copies of foreign authors' woi^ 
which attracted his interest or his curiosity. 

In 1891, when the then existing copyright statute was changed so 
as to give international protection, it was very properly changed so 
as to restrict the privilege of importation of foreign books by indi- 
vidual citizens or oy libraries to two copies for use and not for sale. 
You know the reason for that restriction in respect to the number 
of copies was and that the intent of the law and the lawmakers was 


to see to it that American labor should enjoy the privilege of manu- 
facturing the American edition of the book. 

But it has been stated here, and it has been stated elsewhere, that 
the privilege of importing a copy or two copies of a foreign book 
was smuggled — that is not my term, but the term of the critic — into 
the act of 1891 ; that it was gotten in surreptitiously and at the last 
moment. It was so stated here in December a year ago, but was not 
stated in June. 

That is not in accordance -with the fact. The fact was that the 
privilege of the importation was fully, thoroughly, arid learnedly dis- 
cussed long before the final enactment of the bill. It was thoroughly 
understood, well considered, and advisedly incorporated into- the act. 
It will give me great pleasure to furnish to the committee the volume 
and page of the Congressional Record where the debates are con- 

The Chairman. I will ask you, at this point in your remarks, 
when you see a copy of them to make a reference to the pages of the 
Record to which you refer. 

Mr. Jenner. I will do so. I have the data in my pocket. 

Representative Sulzer. If the data is- not too long and volu- 
minous, I think it would be a good idea to incorporate it in your re- 
marks. I do not mean now, but when you correct the stenographic 

Mr. Jenner. I will do so. I read the discussion, in part, only last 

Since 1891, there has been an importation, mainly from England, 
but no doubt from other countries not speaking the English language 
to a moderate extent, of foreign-made copies of foreign authors* 
works. I do not know of any right more innocent than this exercised 
by the citizen, or of any act that is capable of less harm than the 
exercise of the right by an American citizen to write abroad to some 
dealer in London or elsewhere and say:'" Please send me through the 
mail a copy of some foreign author's works, be he distinguished or be 
he obscure, not for the purpose of sale, but for the purpose of preser- 
vation and perusal in my own library." 

By vour bills you concede to the Government the right to import 
ad libitum foreign books. You concede to libraries, to colleges, and 
to institutions of learning in great variety the right to import the 
foreign-made copy of a foreign author's books. You concede to 
returning foreign travelers the right to bring in as many copies of a 
foreign-made copy of a foreign author's work as they can possibly 
bring in as personal baggage, and if they pay a duty of 25 per cent 
they can bring in a ton ; but you deny to the poor student, too poor to 
go abroad, you deny to the busy scholar, too busy to go abroad, the 
right to bring in, through the mail, what you allow to the Govern- 
ment, what you allow to the institutions, and what you allow to the 
returning traveler. 

I forbear to characterize that as class legislation. I simply &ppe&l 
to reason. What is the Government but the people crowned i What 
do public libraries exist for except for the benefit, instruction, and 

Promotion of virtue in the people? What are returning travelers 
ut a very considerable section of the people? Is not the private 
student, is not the busy scholar as much entitled to your consideration 
as any of these institutions or persons to whom you concede the privi- 


lege? ^Miat is there in his situation or in his circumstances that 
should lead vou to deny to him a right which, in reason and coinmon 
sense, should be enjoyed by him as by others, a right which from his 
situation, from his helplessness, from his capacity to use it wisely is 
one which ought to appeal especially to your lavor? 

Who is harmed by preserving to him this privilege? Not the 
American author? Vou can not imagine how the interests of the 
American author are to be affected by the value of a hair, if you 
allow him to import a foreign-made copy of a foreign author's works. 

Representative Currier. You do not care to have the law framed 
so that you may import a foreign-bound book by an American 

Mr. Jenner. I do not care for that, sir. As a private citizen I do 
not care for that. It is a Question which peculiarly affects the econ- 
omy and administration oi public libraries, and I concede there is 
much to be said about it. 

Representative Currier. We leave that without restriction, so far 
as libraries are concerned. 

Mr. Jenner. I know you do. I am, personally, a book buyer, and 
as a book buyer I care nothing about it; but there are questions of 
economy on which there is much to be said on both sides. 

The foreign author is not injured. I think that under the inter- 
national copyright law we should be solicitous about the interests of 
the foreign author. His market is improved by that liberty of im- 

But who is helped or benefited by the prohibition of importation ? 
You will smile, you will be amazed, when I undertake to describe the 

[)etty interests that, under hi^h-sounding phrases and professioAs of 
ofty sentiment, are endeavoring to put a few hundred dollars into 
their own pockets. I have been a book buyer — my wife is in the 
audience, and she complains that I buy too many. I have got many 
thousands of them, and if I had not sold a library twenty-five years 
ago I would have thousands more. I have got more than I shall ever 
read and more than I can make use of; but I never bought one that I 
did not expect to read at the time I bought it, and I hope I will live 
to do it. I am not a dilettante in books. I am not what is called a 
faddist. The books which I want are books that are desirable ones 
and the possession of which every gentleman at this table would 
enjoy. But there are in the city of New York a few publishers^ so 
few that you can count them on the fingers of a mutilated hand with- 
out including the thumb [applause]. 

Representative Legare. Can you give me names of some of them? 

Mr. Jenner. Do you insist? 

Mr. Leoare. I would like to have them. 

Mr. Jenner. They are G. P. Putnam's Sons, Charles Scribnec^s 
Sons, and Dodd, Mead & Co. I would rather that should not go into 
the printed report if there is to l>e one. 

Mr. (lEOROE 11. Putnam. I do not see that it makes any difference 
so far as the firm of G. P. Putnam's Sons is concerned. 

Mr. Jenner. I am not consulting your feelings, sir. 

Now, Mr. Chairman, I want this committee to understand that I 
have absolutelv no resentment. My relations with these publishers 
have been perfectly friendly. They have always treated me with all 
of the courtesy which I could possibly demand. I have no stored-up 


difference with them ; but I condemn their public action, and I am 
frank enough, honest enough, independent enough to say so, in the 
interest of those who shall come after me. Their business is not ex- 
tensive as publishers of American authors' works. It would be in- 
vidious to guess what. Their business is largely as jobbers of English 
books, and by that I mean that they are accustomed to import from 
England an edition of 100, 200, or 500 copies of an English author's 
works and print or have printed for them a title-page on which their 
own name appears as publisher. They call themselves the American 

Of course the right of the American citizen to import from abroad 
a genuine copy ox the same book necessarily keeps down the price . 
which they can charge for their books. For example, I can import, 
by order through a London dealer, such a book at the rate of aoout 
32 or 33 cents to the shilling; but if I go to them for a copy I have 
got to pay them at the rate of about 40 cents to the shilling. For my- 
self I ao not care for the difference in price. What I want is a copy 
of the genuine work. I want it to come from the place where it was 
made, where it was written, where it was first published, and in the 
exact form in which it first came into the world. 

Representative Law. I would like to ask you if there are not many 
important instances in which the American edition is substantially 
different from the original foreign edition? 

Mr. Jenner. I was just coming to that. 

Representative Law. Will you name a few instances of that kind? 

Mr, Jenner. I am going to do it bet.ter than by naming instances. 
There is another relation which these people have. Of course when 
they import this edition they make simply a dealer's profit. They 
make but a small profit. 

I have said that they were not publishers of American authors' 
works on a large scale. On that point it may be that I can be contra- 
dicted ; but I base that statement on this authority. For a number of 
weeks, beginning a year ago, or six months ago, at different seasons of 
the year, I have taken the advertisements of the publishers whom I 
have named and I have checked up the English books and the books 
of American authors, with some or which I was familiar, and others 
of which I had never heard, and then I divided them into two parts. 
I found that their business for American authors is very small. 

That is the authority on which I made that statement. If the 
gentlemen of the committee approve of it, well and good. If you do 
not, I have only to say that I have taken the best means at my com- 
mand to ascertain a fact, which I want to state. 

Now, Mr. Law, it is their desire to print a cheap edition of the 
foreign work, and so forestall the market for the genuine work itself. 
I intend to quote to the committee a paragraph from an article en- 
titled "A publisher's defense," purporting to have been written by 
George Haven Putnam and prmted in the Independent, a weekly 
magazine, in the issue of November 21, 1907. The trouble with Mr. 
Putnam is that he writes too much. 

Representative Sut^eb. " Oh, that mine enemy would write a 

Mr. Jenner. He has written a book also. Now, Mr. Chairman, 
with your permission I am going to read this with some degree of 
deliberation because it answers Mr. Law's question so squarely and 


bears so directly upon my argument, that I desire to have it appre- 
ciated. Of course it is written with that fluent expression which is 
so attractive in Mr. Putnam's writing. He says: 

The book-buying piibUc has also a direct l)uslue88 Interest in the matter. 
There are many books of which the publisher is prepared to undertake the 
production of American editions only when he can be assured of the control of 
the market that he has purchased. If such control can not be assured and the 
book is not undertaken in an edition suited for the s|)ecial requirements of 
American readers, a large number of these readers fail to have knowledge 
of the existence of the book or to secure service from it. The readers who 
liave occasion to purchase their copies are obliged to take these in the trans- 
Atlantic edition, which is. as a rule, not so well suited for American require- 
ments and which Is usually higher In price than an edition printed on this side. 

That is to say, Mr. Putnam, as spokesman for his association and 
trade, proposes to adapt an English book to suit the American taste, 
as he thinks, and then to tell the American student and scholar that 
he must take his adaptation or go without. For my part I do not 
care for Doctor Putnam's preparations. [Applause.] 

Representative Law. Under the provisions of this law, at least as 
they stand now, you could not get an original foreign edition, without 
going over to Em^ope after it. 

Mr. Jenner. I would not say that without a qualification, and I 
will now come to the qualification. I will endeavor to speak of that 

Jualification with patience. All of my life I have enjoyed frankness, 
do like things to be done aboveboard, and I do not like tricks. I 
have not much skill at them. The framers of this bill, and it was 
framed in the Librarian's office, put in these hoodwinking words, 
*' They shall not be imported except under peimission " — under the 
permission of the proprietor of the American copyright. The Gov- 
ernment, the college, the institution of learning, and the returninjg 
traveler are not obliged to get permission; but the private citizen is 
required, by this law, to go to Mr. Putnam, if he is proprietor of the 
American copyright, and say to him: "Mr. Putnam, will you give 
me permission to import Longman's edition of Mr. Bryce's book on 
America T' He will reply, '* Now, Mr. Jenner, I am getting out that 
book mys(»lf ; my edition will be ready in a few days, and while I 
have adapted it a bit, not much, you will have to wait for that." I 
say, " Please, Mr. Putnam, let me have the permission."" And he 
replies, " Well, if you want it so badly, give me $5 and I will give 
you the permission." [Laughter.] 

I do desire, in all seriousness, that the chairman and other members 
of this committee will not put us in that position. That is not a situa- 
tion in which I would want to be put; but you have legalized it and 
sanctioned it, under the authority of this Government. 

But what is the situation of the student, what is the situation of 
the scholar, what is the situation of the American citizen who feels 
tingling in his blood the spirit that tossed overboard the tea in Bos- 
ton Harlx)r, when you, by your law, compel him to submit to that 
humiliation. I say to you in all candor, and I sav it in all earnest- 
ness, that you should take that out of the bill. t)o not include in 
your bill a single word which will make it possible for any American 
to degrade himself by soliciting that permission or by paying any 
amount, I care not how small it be, for the privilege of doing that 
which for a century and a quarter every American has had the right 
to do, and which you can not find a reason for depriving him of now. 


Turn him into a smuggler, for in that character he would be more 
respectable than in the character of petitioner for the favor of doing 
that which he ought to be able to do as a right. And so I say take 
that out of the bill. That w«uld be my advice. 

Representative Leake. I agree with you, Mr. Jenner. 

Mr. Jenner. I thank you, sir. Now, I know I am taking too 
much time, but there is one other aspect of this question to which I 
want to refer, and that is the labor aspect of it ; and it is an important 
one. I do not know whether there is any representative of labor in- 
terested here; but if there is I want to say to him I do not want him 
to antagonize before these committees what I want, and I am going 
to give him a quid pro quo, and with the permission of the com- 
mittee I am going to expose a plot in this bill by which labor is being 

Representative Sulzer. That is very important. We would like 
to hear that. 

Mr. Jenner. I will do it, sir. I pledge my word to do it. I do 
not want him to interfere with what is right -in this bill in that 
respect. I sim^v say to labor that labor is interested on my side of 
this question. The amount of extra type set and the amount of extra 
printing and binding that may be done, if you let me and a few others 
who may want to exercise the right, import a copy for use and not for 
sale, is not going to put a thousandth part of a mill into the pocket 
of the laboring man, the typesetter, the printer, or the binder in this 

I have a note to refer to something Mr. Putnam said yesterday 
about your changing the law so as to permit him to get his hooks, 
such as he wants, bound abroad, in France or in Italy, l>ecause he has 
some rich clients or customers who like to have European binding. 
Therefore he says, " Let me have my books bound in France or 
Italy, but do not let the private scholar or student import a foreign- 
bound book." 

This bill presents a pervasive and svnthetic scheme for the profit 
of a few publishers at the expense of the people. It proposes to 
legalize the right of the publishers and the booksellers to regulate 
the retail price during the copyright term. 

Representative Currier. Do you mean section 44? 

Mr. Jenner. I refer to section 49. 

Representative Currier. I suppose you do know^ Mr. Jenner, that 
that appeared, in a more pronounced form, in section 34, which was 
in the bill as I reported it and which we afterwards discovered and 
cut out. 

Mr. Jenner. You did, sir. 

Representative Currier. And if you can convince this committee 
that there is anything in section 44 that will produce the same result, 
you need not be disturbed about its remaining. 

Mr. Jenner. I know that. 

Representative Currier. Pardon me for saying this; but I have 
the impression that the committee are unanimous on that proposition 
and that section 44 will either go out or be so changed as to meet your 

Mr. Jenner. Then I will not waste a word upon it. 

The Chairman. I do not think it is necessary to discuss it, because 
the question has been thoroughly thrashed out in the committee of the 


Senate, and I do not think there is a member of the Senate committee 
that does not realize the danger in that section. 

Representative Leoahe. I^t him state his point, so as to get it in 
the record. 

Mr. Jenner. My point is that section 44 is absolutely unnecessary 
and has no place ni the bill, because the point has never been raised 
that the sale of a copvrighted painting had the slightest effect upon 
the copyright theretofore taken. They tell you that section 44 is for 
the purpose of enacting that rule of law. It is hot necessary. It is 
always dangerous to enact a rule of law. You had better leave it in 
its present condition. I leave that point there. 

The bar association has suggested a certain modification which I 
think the chairman has received. 

The Chairman. The bar association recommendations are in the 

Mr. Jenner. As my next point, I want to take up the proposition 
that this bill cheats Congress. Here is an assembly in this beautiful 
room, in what is perhaps one of the noblest library buildings in the 
worm. I believe you have here a million and a half of volumes in 
this library, and I would be glad to have the Library of Congress the 
largest and the most complete to be found anywhere on the earth. 
You intend to ccmtribute to its completion and to its perfectness by 
having copies of every copyrighted work on file here. 

Representative Cirrier. May I interrupt you just for an instant 
to state that I have become thoroughly dissatisfied with the pro- 
vision in my bill with reference to the deposit of copies, and I intend 
to offer an amendment in my committee which will provide that if 
the copies are not filed within so manv days, without any demand 
or notice whatever, the copyright shall be forfeited. 

Mr. Jenner. Then it is unnecessary to say anything further about 
that. I was intendinir to show you how the scheme worked out, so 
that no publisher need file any copies. 

Now let me call your attention to this point. You gentlemen 
would l)e disposed to think that it was a very small tax on tlie j)ub- 
lisher to l)e required to file or deposit in the Library in ^^ ashington 
two copies of a copyrighted book: and that it was so small a matter 
that even a publisher would not ol)ject to it. 

I have here the Publishers' Circular of January 4, 1908, which I 
received from I^ndon a week ago. It gives a sketch of the |)roceed- 
ings and subjects which are to h^ discussed and provided for, so far 
as the International Congress of Publishers can do it, at Madrid 
next May, and this is the eleventh topic of discussion: ''Abolition 
of lejral deposits.'' The membei-s of tlie International Congi-css of 
Publishers are goinir to discuss the alwlition of the legal requirement 
to deposit a co[)y of a book and all other similar formalities for ob- 
taining a copyright. They aiv going to discuss and devise some com- 
mon scheme by which they can get rid of giving awav, as the price 
of a half a century of exclusive privilege, a ccmy of a Ixiok. 

I venture to say that Mr. (ieorge Haven Putnam will go as the 
American delegate to that convention, as he has gone heretofore, with 
all of his knowledge and all of his skill, to advocate such al)olition. 

I would like now to say a word on the copyright term. I have 
no brief for any author. I am personally acquainted with many of 
them, and, to simie extent, have the honor to enjoy their confidence. 
I know somewhat about their situation and their relations. 


There are certain inaccuracies and inconsistencies in this bill, cer- 
tain snares perhaps — no; that is not the proper word. The word 
" inconsistencies " will express it better. 

The bills, as they stand, give to the copyright taker a term for 
life and thirty years from the death of the last survivor, if there are 
joint parties. But you ^ve to the posthumous work only thirty years 
of protection, and you give to a work copyrighted by an employer or 
a corporation forty-two years. 

May I ask what is to prevent even a posthumous work or any other 
work from being copyrighted by a corporation, which you can organ- 
ize, if it is necessary, for $25 or less? 

Would it not then come to this, that every book that is posthumous 
and every book that is written by a literary man will be copyrighted 
by a corporation so as to enioy the forty -two years of protection, 
instead of thirty years, plus the term of his own life? Would there 
not be a constant temptation to resort to the subterfuge of copyright- 
ing in that corporate form, so as to enjoy the longer t«rm ? 

The present term is twenty-eight years, with the privilege of re- 
newal by the author or his family for fourteen more, making forty- 
two years in the ag^egate. We have produced some masterpieces 
of literature in that time, and masterpieces have been produced with- 
out any time. 

But you are now taking away from the author that privilege of 
the fourteen years additional. It has been asserted here, and you 
Jjave agreed, that 90 per cent of the books copyrighted do not enjoy 
the second term of fourteen years. I think that is more than likely 
to be an accurate estimate. But those that do are the bonanzas, un- 
expected, the booties that have fallen into the mouths of the pub- 
lishers unexpectedly, and why should not the author have the benefit 
of those fourteen years? ^Vhy should you not give him an oppor- 
tunity to make a new bargain with the old publiSier, or go to a new 

What is the answer to that? This is the answer that is given you : 
We have got our plates, says the publisher, and this will leave our 
copies on our shelves. They will oe of no use to us, if, at the end 
of twenty-eight years, the author can say to us I am going to some 
one else. I believe that if there was ever more thorough humbug 
than that uttered in the hearing of distinguished men, it has never 
come to my knowledge. You may go through the book markets of 
New York and through the big stores and look for books still on 
sale that were printed first twenty-eight years ago. Look at their 
advertisements in the newspapers for books that were first printed 
ten or twelve or fifteen or twenty years ago, and you will find that 
there has been a new edition of the works of such an author printed 
from new plates and new type. ^Vhy, a book that needs to go into 
its second term is set up over again. 

What consideration ought you to have for the publisher, in order 
to preserve to him the value of the type metal in his old battered 
plates that have been paid for by the author over and over again, 
as compared with the necessity that the author or his children may 
be under, when the time to exercise that fourteen-year privilege comes 
about? I would say to you, gentlemen, that if you want to extend 
tilie author's term, do it. I would be glad to see the author's term 
extended. If he wants a third term of fouiieen years, I would, give 


it to him. We owe much to authors; but we do not owe anything 
to our publishers. The publisher has no right in morals or in law 
to mix nimself up with the question. He is paid for what he does. 
If that second or third term is worth anything, he has been paid for 
his plates over and over again. 

I would cut out that provision. I would rather leave the law as 
it is, or I would make tliat second term longer, or I would provide 
for still another term, or I would give a fixed term for every book 
copyrighted by the author, by the publisher, by a corporation or by 
an employer, and let every book take its chances within those limits. 

The Chairman. I would like to ask you a question. Would not 
the publisher, if a third term were given, make a contract with the 
author stipulating that not only was he to have control of the publi- 
cation for the first twenty-eight years, but that he should control it, 
and the right to publish it, under the original contract for the 
fourteen-year extension period and if we give another extension 
of fourteen years, then for the second fourteen-year period? 

Mr. Jenner. It is never done, and I have some doubt about whether 
it legally could be done. But I should be glad to see that so provided 
for that it could not be done under the law. 

Representative Law. Then put it in the bill itself. 

Mr. Jenner. Put it in the bill itself, and say that it cannot be done, 
so that the author is certain to have that extension as a provision for 
his age or a provision for his widow and his children. [Applause.] 

The Chairman. It is now ten minutes past 12 and there is very 
important business to be attended to by the members of the com- 
mittee in both Houses of Congress. The committee will now adjourn 
until 8 o'clock to-night. 

Mr. George H. Pi tnam. I would not of course want my conven- 
ience to interfere in any way with the convenience of the committee, 
which has been so courteous to us. ^ But there are certain matters I 
want you to have an opportunity to fairly ccmsider, and I want you 
to have an opportunity to analyze certain statements that have bieen 
presented to you. 

The Chairman. You shall be heard to-night, Mr. Putnam. 

The committee thereupon took a recess until 8 o'clock p. m. 


The committee met at 8 p. m. 

The Chairman. I wish to call attention to the fact that before ad- 
journment this evening we wish all questions outside of the music 
question disposed of, and therefore I shall ask that gentleman who 
may speak from this time on will speak to the subject-matter, and in 
as ifew words as possible, and I may also add that if any speaker ob- 
jects to being interrupted in any way, I, as presiding omcer, shall 
strictly enforce his wishes in this regard. 


Mr. Wise. Mr. Chairman and gentlemen, in accordance with the 
suggestion of the chairman, I shall limit myself to a very brief state- 
ment of the points I wish to call to the attention of the committee. 


I shall preface my remarks with the statement that I represent no 
interests. I have no retainer. I am here partially from a selfish 
motive, and partially from a desire to assist the committee in what 
they have expressed to be their wish, to eliminate from the bill as it 
now stands certain features which they have intimated at the hearing 
this morning they consider objectionable. One of these is the control 
of the retailprice by the owner of the copyright. I am not going to 
waste any time upon the subject of the propriety of gi'anting a copy- 
right owner any such power, but I winh to point out to the committee 
that the power to control that retail price by virtue of a copyright 
bill appears to be in the proposed bill m its present form to a greater 
degree than in the present bill. The word I object to is the word 
•" vend " in the statute as it now stands, and as it is in the new bill in 
the very first sentence. 

Representative Currier. Has not that been in every bill we have 
had, up to the present time ? 

Mr. Wise. Unquestionablv it has, sir ; that is the proper placQ for 
it; but there is one saving clause in the present bill as in every other; 
that is, that the right to vend is limited in our present law ; it is de- 

In the section of the law as it stands to-day there is a statement 
that no person without the consent of the owner of the copyright, duly 
authorized, in the presence of two witne^sses, shall print, publish, or 
import any portion of a copyrighted work, or sell the same, knowing 
that that copy is wrongfully printed or wrongfully imported, and a 
person doing so is held liable to dama^jes. 

Representative Currier. If it is a piratical edition, why not ? 

Mr. Wise. I have no objection to that. . That is why I represent 
people who have for six vears been struggling against that law, while 
an authorized edition sold by the publisher to the wholesaler and by 
him to us is claimed to be within the copyright law. 

Kepre^ntative Currier. And yet you have received complete pro- 
tection from the courts, have you not ? 

Mr. Wise. No, sir; we have not. We are to-day before the Supreme 
Court of the United States, where the question is not yet decided. 

Representative Currier. Every decision rendered has been in your 

Mr. Wise. On the question of copyright pure and simple the deci- 
sion has been in our favor. But the point 1 wish to call attention to 
now is 

Representative Currier. Will you call attention to the sections you 
object to, if more than one ? 

Mr. Wise. I am now calling attention to section 4964. 

Representative Currier. Section 4952 is the present law, it you 
mean the present law. 

Mr. Wise. 4964 is the section that imposes the penalty for violation, 
and 4970 is that which gives a court of equity the general power to re- 
strain by injunctioij. 

Representative Currier. What is the section that qualifies the 
word " vend " as found in all copyright laws? 

Mr. Wise. There is none. 

Representative Ci rrier. What have we omitted that would qualify 
the word "vend?" 
39207—08 ^9 


Mr. Wise. You have omitted a section which should define the word 
" vend." I have no objection to the wording of the bill at all if there 
is to be a section somewhere in the bill which will not make a man 
who sells a duly authorized copy liable to severe penalties for selling 
at less than other copies. I have pointed out this particular wording 
because I think the committee's attention has not been called to it. 

Representative Currier. It has not been called to it. 

The Chairman. Mv attention was not called to it. One reason 
why I notified you, Mr. Wise, to appear before the joint committee 
was that you might call the committee's attention to this point and 
whatever else you thought proper. 

Representative Currier. Will you formulate an amendment which 
will take care of the point? 

Mr. Wise. I am satisfied with the present law — ^taking it right into 
the statute. The English law says what an infringement is. 

Representative Currier. Suppose you should not prevail in your 
case before the Supreme Court? 

ISir. Wise. I come here to the committee for relief, and I ask the 
committee to put into this proposed act such unmistakable language 
as that no court in the future will be in such a quandary as has 
been the case heretofore. 

Representative Legare. Why not formulate an amendment to cover 
the needs? 

Representative Currier. I would suggest that you formulate a 
section and make the matter clear. 

Mr. Wise. I shall be glad to do so if you will give me a little time. 

The Chairman. You may reserve the right to formulate the pro- 
posed amendment and we will incorporate it in your remarks. 

Representative Currier. Can you cite the English law which you 
say is satisfactory? 

Mr. Wise. 1 can give you an extract from the section. 

Representative Ci krier. If you can cite the section we shall be 
glad to have it. 

Mr. Wise. I refer to section 2 of the copyright law of 1842, a por- 
tion of which reads as follows: 

'* The word ' copyright ' shall l)e constinied to mean the sole and 
exclusive lil)erty of printing or otherwise multipyling copies of any 
subject to wiiich the said w^ord is herein applied." 

Sections 15 and 17 expressly define what shall be an infringement, 
and I submit that an act which imposes such severe penalties as the 
proposed legislation should define and specify with great care what is 
an infringement. 

Representative Currier. We hesitate to eliminate a word like the 
word '' vend," which has appeared in all the copyright laws of the 
country. Of course, vou know that the phraseologj' was very differ- 
ent in the first wording of the bill and that the committee cut that 
out and used the phraseologj' which has been used in every copyright 
bill that has ever passed Congross. Is it your suggestion that the 
word '' vend " l)e taken out of the law ? 

Mr. Wise. No: but that the word be so limited and circumscribed 
that the man who sells an unauthorized copy shall not be punished 
as a pirate. 

There is another point which has been claimed — it is not in the bill, 
but it has been claimed — your attention has never been called to it. 


The asl^ociation of publishers and booksellers has made the claim, 
and unfortunately it hlis been sustained by the courts, and I am quite 
convinced that the mere statement of that propositon will prove 
abhorrent to all the gentlemen of this committee; that is, that the 
owner of a copyright — the owner of a patent — because he has received 
8 grant of monopoly from the Government has thereby also received 
a grant of power to combine with the owner of every other patent or 
copyright in the United States, separate and distinct, and by reason 
of the grant of monopoly he has become emancipated from the laws 
that govern trusts or combinations in restraint of trade. In the great 
State of New York Chief Judge Parker, of the court of appeals, has 
laid down the law which I hope will never be sustained, and which 
1 think is erroneous, that the combination of the American Publish- 
ers' Association is illegal so far as it covers uncopyrighted books, but 
is legal as to copyrighted books. Was there ever a more monstrous 
decision ? ^ 

Representative Currier. I understand this is the fact: That all 
the copyright owners of this country may combine in one great trust 
and that that can not be reached by any of the laws against trusts. 

Mr. Wise. Yes; I think it is even greater than that. If I can 
have the attention of the committee, I can state the facts in the case 
which was decided in the Supreme Court last May, and which I am 
appealing now, where we sued the trusts on this (fiiestion. It was 
held illegal, but the court said, " You can not get damages as t^ copy- 
righted books." In other words, they say, " You can not bay any 
books in the markets of the United States if the owners of the copy- 
rights have combined. You are outlaws, and not only are you out- 
laws, but any man who sells to you is an outlaw." 

I think there should be a provision in this law which will correct 
that. Judge Lacombe, of the United States court, has stricken out 
our answer, which set up the monopoly of the combination. He said 
it was impertinent ; that it had nothing to do with the issues. 

Scribners brought an action against us to restrain Macy & Co. 
from selling at a figure less than the figure they fixed. We set up, 
first, that tney did not have the power under the copyright law to 
bring an action against us, and, secondly, that if they did have it, 
they had combined for the purpose of controlling the trade in copy- 
right books and that that combination was illegal. 

Kepresentative Washburn. WTiat is the citation? 

Mr. Wise. That was in Scribners against Straus. I- doubt if it is 
found in the reports. It was on a motion to strike out the pleadings 
as impertinent. 

Representative Washburn. That case has been appealed? 

Mr. Wise. Not that jjarticular portion of it. The main question 
has been appealed; that is, the question whether the rule which Scrib- 
ners adopted was in itself enforceable by virtue of the copyright law 
as against us. 

Representative Washburn. What proposition would you like to 
incorporate in this bill touching that matter? 

Mr. Wise. I would like a provision in this bill to the effect that 
nothing therein contained shall be construed as giving the owner 
of a copyright the right to enter into anv combination in restraint of 
trade or in violation of the State or Federal anti-trust laws. 


Representative Washburn. Those are two entirely distinct propo- 
sitions — absolutely distinct. 

Mr. Wise. They are to a certain extent. I tried to formulate my 
whole proj)osition as rapidly as possible at your suggestion. I have 
no anienchnent to offer except that I wanted to call the attention of 
the committee to the fact that that power, which I do not think exists, 
has been granted by judicial interpi-etation. I do not think that any 
Congress had ever thought that their grant of monopoly would be 
extended to such limits. as it has been extended to. 

Representative WAsnm^RN. Are you of the opinion that this same 
limitation ought to obtain in grants of patents: 

Mr. Wise. Most assuredly. I think that, as Mr. Justice White on 
the argument in this case has said, no man in this land of ours should 
be endowed with what the circuit court of appeals said — that in his 
domain the owner of a patent is a Czar, with autocratic powers, with 
the right to exclude whom he will, in the manner he will. I think 
that Justice White spoke for his associates when he said that that 
court would never subscribe to any such doctrine. I do not think 
the doctrine will find the support of that court. 

Representative Leoare. Will you prepare that amendment and 
bring it in at some time? 

Mr. Wise. I will do so. I would like to have at least a day. 

Representative Currier. You may have two or three days. The 
record will not be made up very hurriedly. 

The Chairman. Any time within a week. 

Mr. Wise. There is a minor point to which I wish to call the at- 
tenticm of the committee; that is the second section of the statute, 
which is in the second section of this bill also. 

Rej)resentative Legare. Which bill? 

Mr. Wise. Senate bill 2499— 

Tint iiothiiiK In this act shall he construed to annul or limit the rlpht of an 
author or i)r()prictc)r of an unpuhlished work, at connnon law or in equity, to 
prevent the copying, |)uhlicati()u, or use of such unpuhlished work without his 
consent and to obtain damages therefor. 

I would like to say that the rights of an author before publication 
are not under Federal jurisdiction as matter of rule. They are mat- 
ter of State jurisdiction and interpretation. Each State has adopted 
dilforent views, or many States have, as to what those rights are. 
But as the bill now stands, with this section included, there is one 
important point which is omitted which might give to copyright 
owners the very rights which you gentlemen seek to deny — by reason 
of the author's rights in an unpublished work. An important ques- 
tion is, what is an unpublished work? The Jewelers' Association of 
New York i&sued a trade directory annually. They made applica- 
tion for copyright, but did not complete it. They then applied for 
an injunction against a rival concern on the ground that they had 
not published the book, but only leased it to their several members. 
Afterwards they took the position that when they deposited the work 
with the Librarian of Confess the deposit constituted a publication 
at common law and that by reason of that deposit they had aban- 
doneil their conmion-law rights. 

There is no principle more firmly established than that when copy- 
right is >ecured it is in exchange for something that the author had 


before, and he must abandon that in order to secure his copyright 
under the statute. Under this bill, unaccompanied bv some means 
of stating that the attempt to secure copyright would be tantamount 
to publication at common Irfw, there may be danger that there are 
two parallel lines that an owner of copyright may follow ; because 
I thmk, although not quite sure, that there is no 'definition in this 
bill of the words " publish at common law." 

Representative Currier. I think we have left that entirely to the 

Mr. Wise. But State courts have decided that the publication is by 
filing a copy. So there the rights are preserved. 

In this bill, as I understand it, as it now i^eads, there is no necessity 
for filing until demand is made and it may never be made. 

Representative Currier. I have an impression that that will not 
be the form of the bill when it gets out. 

Mr. Wise. The amendment which I have in mind is, I think, an 
imi)ortant one, and would control probably the sale of books. I think 
some one, perhaps Mr. Fuller, has mentioned the matter iK^fore the 
committee. My idea is that it should l>e as near as possible to that 
section of the statute which imposes the penalty for infringement. 
The grant is in section 1, and the other provision is hidden away in 
Ejection 44. There are 43 sections between. 


Sfc Putnam. Mr. Chairman and gentlemen of the oounnittee, a 
gentleman on the other side spoke for over an hour this uiorning 
and went all over a large range of territory, from his idea of liberty 
to the business done by Putnam's Sons. There are certain things 
which I think tend to confuse the judgment and action of this com- 

The gentleman who spoke this morning began by laying claim to be 
the representative of the general public; the implication being that 
he was the only one here who did not represent some special interest 
and that the general public required him to appear m its defense. 
I think that it is an indignity to you gentlemen, because you are here 
as a court representing the general public, and 1 think their interests 
are perfectly safe in your hands. That gentleman gave prominence 
to the importance of securing for the people liberty of action. 
Libertv of action to do what? 

With all possible allowance for the exuberance of oratory I point 
out that there are various kinds of liberty, and that some of them are 
not conducive to justice or to the interests of the connnunity. Mr. 
Ogilvie thought he was entitled to liberty of action when he under- 
took to appropriate matter which had been put together with great 
labor by the Messrs. Merriam and that it was an infringement on his 
liberty not to be allowed to appropriate that matter. The Supreme 
Court held that that was a libertv of action that was undesirable for 
any citizen or for the interests of the j)ublic. 

We want liberty, but liberty under the law, a liberty which does not 
involve action by' any citizen that brings injustice on another citizen. 
That speaker said very frankly that he was speaking on his individual 
judgment. I remind you gentlemen that in the deliberations had in 
the hearings before your conunittee, and in th^ cowfex^wsi'^^ ^\:^^^ 


more or less informal as they were, were intended to sift, for your 
action, the suggestions about the proposed law, we had such distin- 
guished jurists as Mr. Steuart, Mr. Fuller, and Mr. Wetmore — ^the 
latter a partner of Mr. Jenner — and the law as it stands had the 
approval of those gentlemen. 

The Lhjrarian of Congress. I beg leave to apologize for inter- 
ruplinff, but I have seen a letter from Mr. Edmund Wetmore, chair- 
man 01 the bar committee, in which he said tliat as to the individual's 
right of importation, Mr. Jenner was to make some statement to the 
conmiittee and that Mr. Wetmore left that to Mr. Jenner. So that it 
is not accurate to say that Mr. Wetmore approved of those provisions. 
It is not at all fair to Mr. Jeimer to have him indicated as approving 
of this measure. The bar committees were advisory committees on 
questions of law. 

Mr. Jenner. I will also state that Mr. Fuller coincides entirely 
with the views I expressed this morning. I have his assurances to 
that effect, given only day before yesterday. 

Doctor Steiner. I talked with Mr. Steuart, and from his conversa-. 
tion I did not understand his views to be as now stated. 

Mr. George Haven Putnam. I did not know an^rthing of these 
matters. I point out that the action before this committee, of calling 
into q^uestion what I should denominate the elemejitary principles or 
copyright, comes late. More or less informal conferences were held 
two or three years back for a sifting of the different views; for a con- 
sensus of opmion; and while it is true that the representatives of 
thirty-odd bodies called to those conferences were interested in main- 
taining and securing copyrights, it is also true that any representa- 
tives desiring to be neard there in opposition to principles of copy- 
right were heard very freely. And further I recall to you tnat 
fourteen months ago, at the preliminary hearing, when this bill was 
in a more or less formative shape and when it was your desire, of 
course, to have the work advanced to final action, there was then 
opportunity to present views in regard to this particular provision 
and it would have been a great savmg of time to discuss them then. 

Representative Currier. Did anybody except those having an in- 
terest in copyrights have notice of those conferences? 

Mr. George Ha>'en Putnam. I understand that the matter and 
the deliberations were referred to very largelv in the public press; 
that various individual requests were received and that individuals 
did attend the gatherings in New York and elsewhere; and a great 
many opinions were received^ digested, and considered. There was 
a little loss of time in bringing to bear a proposition which in my 
judgment has to do with the elementary principles of copyright. 

What I advocate is in line with every copyright law which has 
ever been considered or enacted in this country. A proper copyright 
law should give to the producer an exclusive right to publish, vend, 
and control a certain article. 

It is true that there would be certain inconveniences connected with 
such control. You may call it a monopolv, if you will. It is also 
true that from 1783, the time of Noah Webster and his work, it has 
been held throughout the country that it is to the interest of the 
community as a whole to encourage the production of literature and 
art, and it has been decided that that encouragement of literature and 
art could be secured only by giving to the producer and his assign 


the control of that which he has produced. If the same control is 
not given to the assign as is given to the producer, the producer can 
not get from the assign the full value which he should obtain. 

Representative Currier. All copyright legislation under the Con- 
stitution must proceed upon the ground that it is for the public 

Mr. George Haven Putnam. Assuredly. 

Representative Currier. It is not primarily for the benefit of the 

Mr. George Haven Putnam. For the general welfare. I simply 
point out to you that that encouragement to the producer and that the 
advantage, which you point out, to the community, can not be secured 
unless you carry out in good faith and consistently throughout your 
statutes the purpose of these words, '' exclusive control." 

The speaker this morning spoke of the attempt to take away from 
him and from other individuals a right that they have enjoyed for 
more than a century. I point out to the committee that that was a dis- 
ingenuous statement. Up to 1891 there was no right to import into 
this country, under the lAw, any copyrighted book. ^Yhat we are 
talking of to-day is the consistency, propriety, and desirability, in 
the interests of the community, of leaving the control of the copy- 
right where it is vested in the la\^ All that happened in 1891 was 
that the range of copyright was widened, that we then decided to 
come within the boundary of copyright, and determined to secure 
for American workers, authors, and artists the right to get reciprocity 
between this country and foreign countries. 

Representative Currier. Before 1891 we did not issue such copy- 
rights, did we? So that the books that Mr. Jenner desires to import 
could be brought in very freely, because they were not copyrighted 
here at all. 

Mr. George Haven Putnam. But it was decided up to 1891 that 
copyright books of foreign authors and artists should be put on the 
same plane as American books. There was no purpose of separating 
in any way the rights of authors of books originating abroad from 
those of authors of books originating here. The intention was to do 
here what was already done in Europe — put all books on the same 
basis; that if we granted copyright, we granted copyright. Any 
other plan would not carry out the intention of the law. 

Mr. Jenner spoke as if copyrighted books, for one hundred years, 
could be brought into this country. Up to 1891 in every other 
country there was exclusive control. In no other country has there 
been anjrthing done to undermine that control of the publisher. 

The bill as you are now asked to pass it will still present certain 
inconsistencies, due to inevitable requirementvS, but we do desire that 
the inconsistencies shall be diminished and not added to. 

You have acted, and we think very wisely and considerately, in 
the matter of increasing the term of American copyright in your pro- 
posed statute. So that it is brought into line with the terms. in 
Germany and the proposed law of Britain. Authors and pub- 
lishers alike would attach more importance to security of tenure than 
to extension of tenure. The only simple way is, so far as control is 
concerned, to leave the control where it belongs. 

Representative Currier. I understood you to say a moment ago 
that you did not want any change from the conditions existing prior 


to 1891. Now, if we should provide in this law that a foreign edition 
^ a book by a foreign author might be imported as Mr. Jenner sug- 
gests, does not that leave the condition of affairs just as it was prior 
to 1891? We do not allow importation into this country of copy- 
righted editions of an American author, but prior to 1891 could tney 
not bring in a shipload of them ? 

Mr. George Haven Putnam. Because they were not copyrighted 
books. I merely pointed out that, as prior to 1891, copyright should 
not be restricted by political boundaries, but foreign authors should 
have rights. 

Representative Currier. I understand you to say that you would 
be satisfied with the conditions prevailing prior to 1891? 

Mr. George Haven Putnam. Yes; if you will allow me to pre- 
scribe some modifications. 

Now, I come back to the matter of the assign. He is a citizen of the 
United States; he is usually a publisher; he is the manufacturer in 
the United States. In carrying out his undertaking and his business 
here he employs a larger or smaller number of working people in the 
United States. 

I have had occasion frequently to differ very largely from my 
friend, Mr. Sullivan. He believes that it is essential for the purposes 
of those whom he represents that^^hese restrictions should be imposed. 
His views having been accepted by the Government, they are accepted 
by us, of course. Mr. Sullivan understands that though we differ 
with him, we carry out loyally whatever has been arranged. 

He will be in accord with me on this: The restrictions are a 
burden upon copyrights. If you put that burden on the top of copy- 
right, you undermine, at the bottom, a part of the value of copy- 
right. By leaving an open door for the importation of copyrighted 
books you lessen still further the value of that copyrighted property. 

It seems to me that that would be an inconsistency of a serious kind. 
Just in so far as books manufactured are printed here by the use of 
American printers, just in so far as, instead of employing American 
printers, which is the purpose of your law, in so far as they are re- 
placed by books imported from the other side, the second inconsist- 
ency conies to bear. You make a restriction on manufacture, and 
then do not carry it out. If we do arrange it, we ought to have at 
least the advantage of its carrying out. 

We are publishing a history oi English literature. It is an im- 
poilant work for American readers and the public. We send our 
travelers around the countrv, and they show that book to large num- 
bers of i:)eople. I have paid a largo sum for the American copyright 
of that work — a sum which ought justly to entitle the assign of the 
work to the results of his labor. That book comes here to this coun- 
try, and just in so far as it comes in the property control, the manu- 
facturing interest, is supposed to l)e caretl for; just in so far as those 
two tiling are set at naught, the enterprise of Americiin publishers 
will be discouraged. It is for us, who know, to state this, not because 
we have authority, but be<*ause we have direct knowledge. I say it 
will discourage very seriously, and will to a large extent prevent 
invastment by American publishers — the buying of a market that we 
are not allowed to own after we have l)ought it. 

In his presiMitation Mr. Jenner described at some length the im- 
portation of books from England or elsewhere, 250 or other number 


of copies. Now, he was either forgetful or disingenuous in not bear- 
ing in mind that the imported edition has nothing whatever to do 
with what is concerned here. That was an irrelevant example of the 
wickedness of the importing publishers. It leavas him still free to 
do whatever he chooses on the other side. 

The provision now in question which he desires to have restored is 
a distinction of class. The individual citizen in this country who 
happens to have a bank account in London can import his work by , 
mail. He belongs to a small group, though it may be an increasing 
group. The English publisher is coming into the American market 
more and more. 

One reason why there has been so great desire to import by mail 
is because a large proportion of the b^oks coming in in thot way do 
not pay duty. I admit that that is an advantage to the individual 
importer who has a bank account in Tendon. 

Representative Currier. But the individual import^jr has to pay 
duty on his books? 

Mr. George Haven Putnam. But many of them do not pay. 

Representative Currier. Still, they are dutiable. 

Mr. George. Haven Putnam. The duties are not paid. 

Mr. Jenner. The duties are imposed. 

Mr. George Haven Pitnam. Numbers of copies coming in by 
way of Canada do not pay duty. 

Representative Currier. Having been in the customs service my- 
self, 1 will say that a customs official is detailed to go to the post- 
office every morning and po over the matter with the postmaster 
to see what is dutible. It is not left to the post-office officials at !>il, 
but to the trained customs officers. 

Mr. George Haven Putnam. That is the fact, undoubtedly, in 
many post-offices, but there are a large number of post-offices in 'he 
United States. 

The Chairman. You have had twenty-eight minutes' time. 

Mr. George Hav-en Putnam. I did want to say something about 
a matter presented this morning. 

The Chairman. If you will present it in writing, it will ho just 
as well. It is now 9 o'clock. 

Mr. George Haven Putnam. I see the difficulty. I waij afraid 
that that would be the case, if these various charges and questions 
were left to so late an hour. 

I point out to Mr. Currier that as the matter stands it is in favor 
of the English dealer. I say that an arrangement under which the 
American bookseller has to pay the duty on a book as it comes in, 
and has to do the advertising of the book in this country, and has to 

E resent it to the possible buyers here, and then let the advantage of 
is services and his outlay go for the benefit of the foreigner — such 
an arrangement is not just to the American citizen. 

We are asking here for a law that we should trust would have a 
permanent interest — a permanent copyright law. It should be a law 
that would form a precedent for future legislation. I contend that 
it is esentially important that the provisions of this law should be 
in accordance with justice in the first place, with copyright in the 
second place, with justice to the American citizen, and with equal 
justice all round, not more in favor of one class than another. I do 
contend that the provision which, I repeat, was put into the law of 


1891, which we had been discussing for five years — that provision was 
not analyzed, though the purpose of the five years' consideration was 
that all provisions and suggestions should be analyzed. We never 
had an opportunity of considering that provision. That provision 
ciime out with the law, to our great surprise. So I say that that 
should not be considered a precedent. I say that that provision was 
ill-advised and that there is no clause in it which prevents the im- 
portation to-day of unauthorized productions. I had a printed list 
in my hand the other day here which included a rec4)mmendation to 
buy Wallace's Ben Hur in a pirated edition on the other side. 

Representative Currier. You know that the committee do not de- 
sire to admit piratical editions. 

Mr. George Haven Putnam. Most assuredly you do not intend to 
do that. But when books come in by mail, as they often do, no i)ost- 
master is authorized to define a pirated edition. 

Representative Currier. It is not the postmaster who passes on it, 
but a trained customs officer. 

Mr. George Haven Putnam. But a customs officer can not detect 
a pirated P^uropoan edition of a book from the other side. If a man 
should want to import an P^nglish editicm of, say, Irving's works, a 
bookseller is applied to, and he writes to the proper party, and there 
is no difficulty in getting the work. 

With the door tlirown wide open, with evei'j'one having a right to 
import two copies each week, fifty-two weeks in each year, you take 
away the reciprocity provisions of the law under which we give to 
the foreign book exactly the same status as to the home book. 

The Chairman. I desire the record to show that I received a letter 
from the Secretary of State inclosing a cony of a letter from the 
American commissioners appointed to consider the relations between 
the United States and (lermany regarding the arrangements of the 
two countries for the reciprocal protection of works oi literature and 
art, and the modifications thereof which (lermanv would regard of 
value. A few days after receipt of the letter, I addressed a letter to 
the Secretary of State stating that his letter had been received and 
notifying him of these hearings, and expressing the hope that he would 
have some one present to represent the American commissioners and 
the committee would be pleased to consider whatever recommenda- 
tions were made. The Secretary of State notified me that my letter 
had been referred to the American commissioners for consideration. 
I also notified Mr. North, one of the American commissioners, of the 
time of these hearings, and I was advised that they would have a rep- 
resentative here to speak on the subject-matter of the letter from the 
Secretary of State. I should like to ask if the gentleman is present 
here now to speak in behalf of the American commissi onei-s appointed 
to consider the commercial relations between Germany and the 
United States. 

(Xo response.) 


The Chairman. Mr. Montgomery, of the Treasury Department, 
wishes to make a statement. 

(To Mr. Montgomery.) You may state your full name and your 


Mr. MoNTOOMERY. I am assistant chief of the customs division in 
the Treasury Department. I should like, Mr. Chjiinnan, to say, in 
answer to Mr. Putnam, that all these books of which he speaks, that 
are imported through the mails, pay duty. We have very elaborate 
regulations on the subject and follow them very closely, and I repeat 
I am perfectly satisfieii that all these books pay duty. 


The Chairman. You have ten minute, Mr. Page, in which to pre- 
sent your views. 

Mr. Page. Mr. Chairman and gentlemen of the committee, I sup- 
pose ten minutes might be considered a very limited time for those 
who represent the obscure authors, who are those whom I represent. 

The Chairman. It is a very limited time, undoubtedly, but it is the 
best we have been able to arrange for in view of all the circumstances. 

Mr. Page. I wish to say at the outset, Mr. Chairman and gentlemen, 
that this bill seems to me, as an author, to l)e an exceedingly complete 
one, and to cover the ground in an admirable wav, so much more cx)m- 
plete than I could possibly devise that I regard it with the greatest 
possible respect. 

WTiat I have to say will be as to a few points in connection with the 
bill, though it is possible that you gentlemen may already have given 
consideration to those points. 

In section 25 of the bill (S. 2499) you say: 

Section 25. That the copyright socnred by this act shall endure: (a) In the* 
case of any posthumous work, for thirty years from the date of tirst publication ; 
(b) in the case of any periodical or other composite work or of any work 
copyrighted by a corporate body or by an employer for whom such work is 
made for hire, for forty-two years from the date of first publication; (c) in the 
case of any work not speeificKl in sub-sections (a) and (b) of this section, for 
the remainder of the lifetime of the author after first publication, and for 
thirty years after his death, or if n work by joint authors, until thirty years 
after the death of the last survivor of them. 

The matter of an extension of copyright for longer than thirty 
years was, I think, considered at the time of the conference two years 
ago, and so I will not speak of it now. 

I observe, however, that joint authors are to have copyright for 
thirtv years after the death of the last survivor of them. It seems to 
me that that might l)e improved a little bit, because it would tend 
rather to make persons disingenuous. They might get some one to 
unite with them to the extent of a few lines, and let the work go out 
as a matter of joint authorship. 

The Chairman. I will say, Mr. Pacre, that that criticism has been 
made by others; in fact, I have heard it made by many people, and 
yet I have thought this about it: Would it justify any author to have 
some person younger than himself write a few lines in the book for 
the purpose merely of an extension of the c^)pyright as provided in 
this subsection (c) ? Do you think that the disiid vantages of having 
another person interested in the copyright, the complications that may 
arise through his death and through family disagreements, would 
more than offset what advantage an author would receive from resort- 
ing to that plan ? 

Mr. Page. I think it might. I simply called attention to it be- 
cause it might leave the author at a disadvantage. 


Representative Legare. He might do it with his son. 

Mr. Page. Or his grandson. 

Representative Currier. I do not think that the average man would 
take much interest in what was doing thirty years after his death. 

Mr. Page. Only that copyright after his death is a provision for his 
heirs, his children, and grandchildren. However, I leave that consid- 
eration to you gentlemen. 

I observe that in section 27, on page 15, at line 8, a provision that 
co])yright might be extended, renewed, under proper conditions by 
the widow or children of an author. It might be that a man might 
have sisters or some other female relatives dependent upon him whom 
he has supported all his life, and they might lose all the profits of his 
work. \et they might be members of his family quite as much as if 
they were his children. I submit that for the consideration of you 

Representative Law. How would you suggest that that be ar- 

Mr. Page. He might leave it by will, I should think. 

Senator Brandegee. To his legal representative? 

Mr. Page. Yes. 

Representative Cirrier. A Member of Congress spoke to me al)out 
the case of Frank Stockton. Some of his books copyrighted for twen- 
ty-ei^ht years are just about running out. He had a brother whom he 
provided for in his lifetime, but that brother can not get any benefit 
of the copyright. 

Mr. Page. It seems to me it ought to be extended to him. I have in 
mind the case of Mrs. Ritchie, Thackeray's daughter. After, her 
father's death, she, owing to some complications which rendered her 
uncertain as to what her rights might be, sold the complete copyright 
in all his works for £5,000. as I understand, and I suppoj^e that fifty 
times tliat sum would liave been a reasonable value for it. In order 
to get some advantage from his work, she afterwards edited an edition 
of them, which was brought out by Harper & Bros., on this side, she 
writing an introduction to each volume, so arranged as to comply with 
his request that no biography should be written of him. Unfor- 
tunately the print of these sketches is so small that men of my time 
of life can get no advantage from them. 

I come now to the question of the importation of prints, which was 
under discussion this morning. I wish to say that I represent onlv 
the author; and, may I say in the presence of my distinguished friend, 
Mr. Jenner, also the book lover. I, myself, am very rond, at times, 
of importing a British book, a British imprint. I like the print and 
I like the paper sometimes; it is better than ours. So occasionally I 
indulge myself a little in getting a volume or two. Personally, as an 
author. 1 see no reason why an importation of that kind should not 
be made. 

I am willing to take the chances of a reasonable reduction of royal- 
ties, which are never too larife. I think that the provision, however, 
as it stands in your bill. >lr. Chairman (S. 2499), may benefit by 
some modification. The clause relating to this question is found in 
secticm 34, l)eginning at page 18. The point to which I wish to call 
attention will be found on page 20, at line 12: 

When imiwrted, for use nnd not for wile, not more than one copy of any such 
book In any one Invoice, hi ^<km1 fnlth. by or for any society or institntion Incor- 
porated for educational, Uterary, philosophical, scieutiflc, or religious purposes. 


or for tbe encoorngement of the flue arts, or for nny colle^^e, acadeniy, school, 
or semliiary of learning, or for any State, school, collepe. university, or free 
public library in the United States. 

Now I am infonned by men on whoso word I place great reliance 
that that provision is used and that a great many volumes are brought 
into this country under the jguise of being used for libraries. 

As you gentlemen know, in England the Mudie Library is the pur- 
veyor of books and literature for the public. So that when a man 
publishes his books in England, the question whether Mudie will take 
them or not really decides the question of whether a man will publish 
or not. Mudie lias had control of the matter until possibly lately — 
I think that they are possibly becoming in a measure eniancipated 
from the Mudie control. 

Now, it seems to me that if a man brings in a book by mail he 
really evades the intention of your law. 1 was in New York the 
other day and was shown a list made up by some one who was advis- 
ing libraries about books; and the number of l)()t)ks that were recom- 
mended to be bought on the other side was astonishing. I could 
readily give you a copy of the publication — it was a large catalogue. 
I should say that for two books by American authors, included in this 
list, there would be five or six by foreign authors — generally because 
they were so much cheaper. But they were much more indifferent 

If I may be pardoned for making a personal allusion in this pres- 
ence, I will explain how that sometimes comes about. I, myself, have 
had very fortunate relations with publishers on this side," and very 
unfortunate relations with publishers on the other side. T have had 
several publishers on the other side. One ])ublishor undertook to 
bring out two of my books in a cheap edition. They appeal to a 
rather limited audience, and they need to bt* in pretty fair type and 
to be pretty well put up in order to make much of a show. [Laugh- 
ter in the hall.] 

This man brought out these two books of mine with quite a flourish 
of trumpets; but when brought out the two volumes were in one 
volume, and on the back was a large silver dollar. It was called 
"The American Dollar Series." It was just at the time that the 
silver question was a^t^iting this country, and I suppose he thought 
it would be a good thing to brin^ the book out in that way. When 
I saw the book I said : " There is not a line in either one of those 
books that is not a protest against the back." [Laughter.] 

I hope I am not taking up too much of your time, but one has to 

fo back occasionally to ones own experience for illustrations. The 
rst book I published in England had the title of '' Old Virginia." 
The first story in that was one for whose publication in b(X)k form I 
was indebted to the Century Magazine. That book was taken over 
to England and was taken up by a publisher there. I was delighted 
to hear that it was to be published in England. (I was then a much 
younger man than I am now.) The point of the story was that a 
young officer had been killed in the war and his body servant had 
wrapped about him the flag that he had carried up the hill in battle. 
After a while I called at my publishers and they l^rought me out the 
English edition of my book, and on the back of it Avas a large j)icture 
of an Uncle Tom's Cabin darkey, with lips as thick as my dioe, pick- 


ing up a voung officer, in the uniform of a reunited Republic, with 
the flag of our country wrapped around him — a flag for which I have 
great reverence — but it was not the flaff that was wrapped around 
the officer in the story. [Laughter.] 1 mention that' to show why 
the English books are cheaper than the American books. 

This morning I listened with much interest, pleasure, and illumina- 
tion to the very able speech delivei*ed b\' Mr. Jenner. My pleasure 
was marred by only two things. When he ended I did not quite 
know whether he was i*epresenting me or was a^inst me. I knew 
that he had made a very giave error in the application of the point 
which he was enunciating. Just as I entered the room he was speak- 
ing of a man to whom more than any other man in the world, not 
excepting myself. I am indebted for the honor of appearing before 
you this evening — that is. Mr. Charles Scribner. I have had more 
dealings with Mr. Scrihiier than probably any man in this room. I 
want to say that my relations to him were not that of author and 
publisher, who are sometimes at daggers drawn, but they were those 
of the confiding client and his counsel. 

I practiced law for eighteen years in a community where, when a 
client employed counsel, that counsel was indeed his counsel, and 
nothing in the world would have swerved him from doing the best 
in his powtT for the interests of his client I feel as confident that 
Mr. Scribner. in any matter of business that I confided to him, would 
look after my interests as they would be looked after if I had been 
the client of my father and reposed my interests in his hands when 
he was a ineml>er of the bar in Virginia. 

Mr. Jenner. Will you do me the favor to state the opinion which 
I repeated to vou personally about Mr. Scribner? 

Mr. Pace. I thnik you said he was a very good and liberal man. 
It was not your private utterance, but j-our public utterance to which 
I refer. I Inward Mr. JcMiner say that there were two firms that he 
would indicate, and they were Putnam's Sons and Scribners. It 
was Mr. J(Mi!ierV tone and manner, more than the words I heard, that 
led me to think that it was a hostile criticism of Mr. Sciibner, and for 
that reason I felt it due to Mr. Charles Scribner that I should say 
this of him, because to Mr. Scribner and men like him who publish 
these magazines is due the fact that the people in our part of the 
country were enabled to enter on literature at all. 

I see that I have already taken up more than my time. I thank 
you, gentlemen. [Applause in the hall.] 

I only want to say m conclusion that I think that the interests of 
an author and the interests of his publisher, provided he has an 
hoiic-t man for a nublisher, are absolutely interdependent, 

Ivopresentative Leoare. Is that always so? 

Mr. Pac;e. If he has an honest one; yes. 

l{epres<Mitative Le<;\ke. Is it always so? 'WTiat are the facts? 

Mr. Pace. I think there are sometimes cases where the author has 
bi^en cheated by his publisher. 

Representative Lecjare. Is that so in all cases? 

Mr. Pac;e. No: but I know of authors who have been so unfortu- 
nate as to get into the hands of shyster publishers, and I know of 
authors whose widows and children have been robbed by publishers; 


but that is not the case when an author has a reputable publisher, to 
whom I understand this bill is to apply. 

Tl>e Chairman. Is there any gentleman here who wishes to speak 
in behalf of the libraries? 

Mr. Cutter. I should like to speak briefly for the libraries. 


Mr. Cutter. Mr. Chairman and gentlemen of the committee, I 
thought it- well, to bring here some books that were imported, and I 
have brought three. This one [indicating] is an American copy- 
righted. book published in New York City in 190i). by G. P. Putnam's 
Sons, exported to England, and reimported into the United States. 
That book is published and sold in this country now at $5 net. That 
means $5 to the ordinary buyer ; $4.50 to the libraries. That book was 
imported to Northampton, Mass., for $1.G2 from P^ngland. 

The Chairman. With the tariff duty? 

Mr. Cutter. No, sir. 

Representative Currier. Will you put the title of the book into the 
record ? 

Mr. Cutter. Yes. 

(Mr. Cutter subsequently stated the title to be Cathedrals and 
Cloisters of the South of France, published by G. P. Putnam's Sons, 
New York, 1906, 2 volumes.) 

The Chairman. Is that the book that vou^say is sold in this countrv 
for $5. 

Mr. Cutter. Yes; this is the American publication. 

Now, however, I show you an English edition of an EnglishmanV 
book [indicating a second book], which a private citizen, under the 
proposed bill, could not import. 

Mr. George Haven Putnam. Excepting indirectly. 

Mr. Cutter. It is " copyrighted in the United States of America, 
1906." That book costs m this country now $7.50. It is in two vol- 
umes. The price to public libraries is $0.75. It costs me, delivered 
in Northampton, paying mail charges, $1.61. 

{Mr. Cutter subsequentlv gave the title of the volimie as Reminis- 
cences of Henry Irving, by Bram Stoker. Published by William 
Heinemann, London, 1906.) 

' Mr. Cutter. I have here also, to illustrate another point, an Eng- 
lish edition of a novel — Somehow Good, by William De Morgan, 
published by William Heinemann, London, 1908. It is copyrighted 
m the United States of America. As I say, this is the English edi- 
tion. This copy costs me, delivered in Northampton, Mass., $1.25. 
It is published in England at a list price of $1.50; it ispublished at a 
net price — that is, it can be bought for — $1.08 in England. The 
American edition is published at $1.75, according to the price list, 
but can be bought by public libraries for about $1.35. The English 
edition is very much better printed than the American edition. 

That is all I wish to say about those three books. I have, how- 
evei-, one other slight point I wish to present in regard to importation 
of foreign books by individuals, and that is in regard to the effect on 
the revenues of the United States Government. 


Under date of December 27, 1907, the Chief of the Bureau of Sta- 
tistics of tlie Department of Commerce and Labor wrote me the fol- 
lowing letter: 

Department of Commerce and IjAbor, 

Bureau of Statistics, 
Washington, December 27, 1901, 
Mr. W. P. Cutter, 

Secretary Library Copyright League, 
Forbes Library, Xorthampton, Mass. 
Sir: Replying to your inquiry of the 24th instant, you are respectfully 
informed that during the year ending with June 30, 1907, the Imports of 
"books, music, maps, engravings, etchings, photographs, and other printed 
matter." the classification under which collectors of customs make returns to 
this Bureau, from the United Kingdom, were in value as follows: 

Free of duty $1,&S0,621 

Dutiable 1, 700, 087 

Very truly, yours, 

O. P. Austin, 

Chirf of Bureau. 

Now, the duty paid on this material, at the rate of 25 per cent ad 
valorem, would be one-fourth of $1,700,000, or $J^-25/24(). 

IJnder the existing law, printed matter may be imported (1) by 
individuals for their own use, paying duty; (2) by dealers for .sale, 
paying the duty. There is no duty on a book that has been published 
more than twenty years. 

It is of course impossible to determine what percentage of the 
dutiable material imported during this fiscal year had been copy- 
righted in the United States. But as the international copyright 
law has been in operation sixteen years, it may l)e said that nearly 
all of the material could have been so copyrighted, and it is probable 
that a gi^eat deal of it was. 

The importation provisions of this bill prohibit the importation 
of an P2n<rlish book by an individual \vhen the book has been copy- 
righted in this country. It >vould therefore reduce the receipts of 
the United States (iovernment by an amount equal to one-iourth 
the value of such goods previously imported. This might amount to 
many thousand dollars per year. 


Mr. SreiNER. Mr. Chairman and gentlemen of the conmiittee, the 
hearing on the proposed copyright bill held in June, 190(>, develoi>ed 
obtain serious objections to it from the point of view of public 
libraries, and it was felt that the best method of trying to have 
changes in the interests of libraries made in that bill was to organize 
an association expressly for the purpose* of defending library inter- 
est.N in copyright matter. Consequentlv in July, 1906, at Nafra- 
gamsett Pier, there was organized the Lfbrarj' Copyright League, of 
which I have the honor to be president. This league appeareaat the 
hearing in Deceml)er, 11)0(), and the efforts of the league so met the 
approval of the American Library Association at their meeting in 


May, 1907, that they "Resolved, That they record their thanks (1) 
to the committee appointed by the executive board which represented 
the association before the copyright conference and presented the 
inclusion in the first draft of the bill of unfavorable restrictions; (2) 
to the Library Copyright League which took up the work at the point 
reached by the committee, and in the hearings before the joint com- 
mittee of Congress and by public discussion helped to make plain the 
justice of granting still greater freedom to libraries in the importa- 
tion of books and contributed to securing the provisions at present 
embodied in the copyright bill." 

At the same convention it was voted by the council of the American 
Library As^^ociation " That the incoming president appoint a com- 
mittee to which shall be referred copyright legislation at the next 
session of Congress, the committee to be instructed to protest against 
any less liberal provisions as regards libraries than the bill reported 
bjr the Committees on Patents of the last Congress." Of that com- 
mittee I have the honor to be chairman. 

I am instructed to state to this committee that the association I 
represent would protest against such a clause as was contained in the 
bill of two years ago, and as is contained now in the Kittredge bill, 
but not in the bills introduced by Senator Smoot and Mr. Currier, 
and which, I imderstand, will not lead to discussion at this time. 
It is the clause saying that the public libraries shall not import a 
book without the consent of the copyright proprietor. 

The Library Copyright League desires to bring before you the 
desirability oi a change in the bill of Senator Smoot (S. 2499) in line 
13, page 20 — changing the words " one copy " to " two copies," so 
that the provision will remain as at present and that libraries may 
have the right to import two copies of any book on any one invoice. 

Eepresentative Currier. It seems to me that you need not take up 
much time with that point. Quit€ a number oi librarians agreed to 
that provision of the Kittredge bill, and they agreed to the compro- 

Mr. Steiner. There are 200 librarians whom I represent that pro- 
tested against it. 

Representative Currier. I do not know about your brief or what 
papers you may have sent in, but I am speaking of those who ad- 
dressed this committee. 

Mr. Steiner. I addressed the committee, and I protested against it. 

Eepresentative Currier. If vou did, I have forgotten it. 

The Chairman. Is it not a fact that in the league itself a vote was 
taken giving authority to a gentleman who appeared here before, at 
the other hearing, to state that the league was willing to agree to the 
provision for one copy ? 

Mr. Steiner. No, sir; excuse me. We authorized the Library 
Copyright League. The Library Association has come to the position 
of the other organization in all points but this one. The point is a 
little complicated, and I admit that it is easy to have a misconception, 
but this is the point I am directed by the Copyright League to present 
before you. 

The Chairman. As I remember, the gentleman who represented the 
Library Association said that he himself would prefer the bill to pro- 

39207-^8 ^10 


vide for two copies, but that he had to represent the association, and 
that they would only consent to one. 

Mr. Steiner. It is of no advantage to anyone, and it is a yexation 
to a lil)ran\ There is no need of more than two copies in one invoice, 
but a large library needs two copies. It is surprising how many books 
have been allowed to go out of print in America or are in paper edi- 
tions. My order clerk tells me, as to one book, that she has oeen com- 
pelled to place an PJnglish edition, inasmuch as she could only find a 
25-cent edition of the book in the American market. I do not think 
we have ever found that we needed more than two copies. If we do 
not have the law as it is at present, we will simplv have to get twice 
the number of invoices. We will not buy the books in America, and 
it will be a vexation to the libraries. 

In reference to the individual importation : As the matter stands 
at present it is necessary for the person interested to undergo what 
may be a very difficult task, to find the proprietor of the American 
copvright. If the provision stands as at present, which I hope it 
will not, we shall have constant difficulty. It is surprising how manv 
books there are as to which mv agent continually reports to me "1 
can not find the publisher " — books that are still in copyright. If 
this provision is still to be kept in the law there ought to be some 
wav by which the proprietor of the copvright can be found. 

iy\i\\ reference to sections 62 and G3 of the bill (S. 2499), it is 
rather a dangerous provision to allow the destruction of copyright 
material. A man desiring to make use of material which may have 
been copyrighted has no way of finding out about it. 


Mr. SiTLLivAN. Mr. Chairman and gentlemen of the committee, I 
wish to offer an emphatic protest on behalf of the 100,000 people 
in the printing business against any further concessions to libra- 
rians in regard to the importation of prohibited books. I wish to 
say that the International Typographical Union, the International 
Bookbinders, and the International Pressmen are willing to abide 
by the provision in regard to importation as now found in the respec- 
tive* bills of Senator Smoot and Representative Currier. 

Kepresentative Currier. I do not think you need to take up much 
time on that point, Mr. Sullivan. 

Mr. SuixivAN. I think, however, that the provision should go 
further. I believe the law is openly violated by the importation 
into the United States of cheap foreign reprints of American copy- 
righted books. 

In the conferences that were held to draft a new copyright bill 
under the instructions of Congress the library associations, repre- 
sented by their national officers, entered into the del il>erat ions and 
agreed to a provision whereby the importation of copies should be 
restricted to one, and in the case of an American copyright book, then 
onlv with the permission of the A*merican copyright proprietor. 

Tfhat provision looked rather arbitrary on its face, but when we 
came to delve into the matter— as my organization and others have 
delved into it — it was believed to be the wat provision. 


I wish to say that for sixteen years we have followed copyright 
legislation veiy closely and the manufacturing clause of the law very 
closely, for we created it. We believe to-day that the manufacturing 
clause is violated by importation of cheap reprints of American 
books. We believe that that should be stopped. If an American 
produces a book we believe the American libraries should buy the 
book and not import cheap copies into this country, as is done. I 
have made some inquiry into that, and in following this line of in- 
quiry T generally nnd nothing but insolence from the librarians 
when I ask for the number of their importations, for they do not 
want to give them. If the American publisher pays American 
printers, American bookbinders, American pressmen, and other 
Americans, even allowing that the book costs from $3 to $5 (it may 
be a book of reference, and should be found on the shelves of the li- 
braries), I want to ask what reason is there for the libraries to import 
cheap editions of foreign books in here and leave the book of the 
American publishers unsold on their shelves ? 

I do not want to take up any more of your time, because I become 
very earnest when I enter upon this subject. I know whereof I 

We stand by the bills of Senator Smoot and Representative Cur- 
rier, although we do emphatically protest against any further priv- 
ileges being granted to libraries. 


Doctor Van Dyke. Mr. Chairman and gentlemen of the committee, 
I do not represent anyone except one plain, humble American citizen 
who happens to be a teacher of reaaing down in a school in New 
Jersey, and who sometimes writes poetry. You can understand that 
neither of these occupations entitles him to a place either in a corpora- 
tion or a labor union. For, so far as I know, the teaching of reading 
and writing of poetry have not yet been thoroughly organized. 

I am interested in this bill which is before you. I do not know 
precisely which one of these bills is before you. I have read parts 
of four bills which have been publi^ed in a pamphlet. But 1 am 
interested in the subject before you, as an American citizen who 
wishes to see the idea of literary property as clearly defined as pos- 
sible and as clearly protected as possible, not for the interest of the 
author alone, or the publisher in conjunction with the author, but 
in the interest of the country at large. 

There is one thing that is fundamental to our country as a people; 
that is that the nature of property of different kinds should be clearly 
defined and understood, and that its rights should be protected in 
such a way that the plain, ordinary way raring man, who, whether by 
inheritance or by his labor, may have rights in the premises, may not 
be confused and bewildered and be obliged to spend enormous sums 
of money upon lawyers to find out what those rights are and after- 
wards get into a situation where he does not know whether he really 
has any rights. 

I think that these bills as they are before you, taken all in all. 
represent an amount of work on the part of this committee and oi 
effort toward the right object, which ought to secure the respect of 


the authors and publishers and of the American people at large. 

We have made long strides forward since this whole subject of 
intellectual property was in a mist and maze — since people could get 
up and SUy There is no such thing as property in an idea." Why 
certainly there is not; but such labor as a man may have given to 
formulating ideas to make them valuable — ^just as chemical elements 
when combined in certain forms and adapted for human use are 
property, so, ideas, regarded as elements and made available for 
human use, may well be said to be property. 

It is one of the essential features of civilization that we should 
reward people in order to encoura^^e them to do their labor well. Mr. 
Currier brought out the idea which underlies the whole discussion 
here, that it is for the good of the whole people that we are acting in 
this matter. 

There are many considerations that arise in connection with it 
Of coui-se, if anyone can throw any light upon it, the committee will, 
I am sure, be very glad. 

The whole question of the importation of books published abroad 
seems to me to involve two things. First, the extent to which you 
intend to protect the manual laborer in the production of books. If 
you intend to protect him fully, you must not go beyond the pro- 
visions of this bill in the importation of books. And in regard to 
the author, if you mean to protect him in the use of his copyright, and 
in the exclusive control of his work^ou must put him in a position 
where it will not be possible for an English publisher with whom he 
has made a contract for his book for half royalty (and sometimes 
the author gets only one-fourth) to come over here and flood this 
market with English books on which only one-half or one-fourth 
royalty is paid to the author. Of course, the author could in a 
measure protect himself against that by making a contract with the 
English publisher that would protect Kim, but it would be difficult 
to do it. 

Mr. George Haven Putnam. And it would be very difficult to en- 
force it. 

Doctor Van Dyke. It would be very difficult to enforce it. If you 
wish to accord a full and fair protection to the American typesetter 
and printer, you should adhere closely to the provisions of these bills 
that are here. 

I think that the bills of Mr. Barchfeld and Mr. Kittredge, saying 
that importations shall not be allow^ed unless copies of the American 
edition can not be supplied, would be unfortunate, because who can 
tell whether they can be supplied or not? It would be a very difficult 
thing to determine. 

In regard to the music question 

Representative Currieh. That does not come up now. 

The Chairman. We do not wish to touch that. 

Doctor Van Dyke. I merely wish to say that that comes under the 
same consideration as the other questions. 

Nowj as to the term of copyright, as you have defined it here in 
these bills, it represents a distinct advance. The idea, I think, in your 
mind as fair men is this : That a man should be protected during his 
lifetime in the usufnict and benefit of his property— property that 
he has produced by the toil of his brain — and also tnat ne should 


have reasonable security of leaving enough behind him to take care 
of his children if he dies, and to take care of them to the point of 
where his grandchildi*en*make their appearance, which, as a rough 
figure, may be said to be thirty years. 
One of the bills says (se<!. 24) : 

In the case of any work not specified in sul)sectlons (a) and (b) of this 
flection, but including a contribittion to a periodical, when such contribution 
has been separately registered under the proviKions of section 12 of this act 
for forty-two years from the date of first publication or for tlie remainder of 
the lifetime of the author after first publication and f(>r thirty years after his 
death (or if a work by joint authors until thirty years after the death of the 
last survivor of them) whichever shall prove the lonjrer period. 

I think that that should go, because if you say simply " for the 
lifetime of an author after the first publication and for thirty years 
after his death " you may be reducing the period of copyright. 

The Chairman. In one case in a hundred thousand. 

Representative Currier. We had that alternative term in this bill 
at one time, and we were urged by the men having an affirmative 
interest in the matter to eliminate it. They asked us to eliminate 
this, and we did it at their request. 

Doctor Van Dyke. I do not know who they were, but let me say 
this. The normal author Ix^gins writing, perhaps, at 15, though 
probably not publishing. There are, however, nuiny writers who 
uegin early but do not do their best work until toward the end of 
their lives. Suppose Mr. Stockton had had a family of six little chil- 

Representative Currier. They would not be six little children at 
the end of thirty years. 

Doctor Van Dyke. That is true, but he would not get as fair a 
show with that provision as he would under the other provision. 

The Chairman. I do not know to what age he lived, but if he 
had written only one book and that had been in his old age, perhaps 
written two years before his death, then he would have lost a few 
years under this bill, but if twenty years before his death, he would 
gain eight years under the provisions of this bill. 

Doctor VAN Dyke. But you do not want him to lose anything. 

Representative Currier. TMiat do you say about the lengthening 
of the term of a monopoly? 

Doctor Van Dyke. I do not think it is a monopoly. 

Representative Cirrier. This committee will try to formulate a 
bill that there will be some hope of getting through the House. 

Doctor Van Dyke. Very true; but I think that the House is per- 
fectly well prepared to recognize copyright as it ought to stand in 
this country, as in the other most civilized countries in the Avorld. 

The Chairman. You think the authors would like a stipulated 
period rather than an uncertain period ? 

Doctor Van Dyke. This is an uncertain period, for it is for the 
remainder of his life. 

The Chairman. We are trying to get as perfect a bill as we pos- 
sibly can and comply with the wishes of the American author and 
also have a chance oi receiving the support of Congress. 

Doctor Van Dyke. I wish to say that a period of forty-two years 
and thirty years after his death would be a period that would cover 
more justly the idea of proper reward to a man. This is the cnwVj 


form of property recognized which is terminated at the end of a fixed 
period of yeai-s, and therefore it seems to me that that period should 
be extended to a length that should be entirely just. 

The Chairman. If there is no objection on the part of the com- 
mittee I would like to insert in the record at this time a statement 
by the American Newspaper Publishers' Association proposing cer- 
tain amendments to the pending copyright bill. Instead of making 
a statement here by their representatives, this evening, their sug- 
gi»stions are contained in this statement that I now submit to be 
placed in the record, if there be no objection. 

(The statement is as follows:) 

Statemknt of Copyright Committee op American Newspaper 
X Publishers' Association. 

[Theodore W. Noyea, WashlDgton Star; L. M. DuteU, Baltimore News; J. 8. Bryan, 
Richmond Times-Dispatch.] 

Unauthorized newspaper " reproductions " or crude imitations of 
copyrighted photographs should not be treated as punishable in- 
fringements of copyright law. 

(1) To secure constitutional copyright protection a photograph 
must be the ''writing" of an ''author;'' tnat is (Sarony case, 111 
U. S., 58), it uuist represent an original intellectual conception of its 

Lithographic Co. v. Sarony, 111 U. S., 53 (1883). Opinion of 
court by Justice Miller: 

" The eighth section of the first article of the Constitution is the 
great repository of the powers of Congress, and by the eighth clause 
of that st^ction Congress is authorized: 

•' * To j)romote the progress of science and useful arts by secur- 
ing for limited times to autliors and inventors the exclusive right to 
their respective writings and discoveries.' 

'•The argument here is that a photograph is not a writing nor 
the prodiution of an author. * * * It is insisted in argument 
that a nhotograph, being a reproduction on paper of the exact fea- 
ture^ of some natural object or of some i>erson, is not a writing of 
which the producer is the author. ♦ * ♦ 

" We entertain no doubt that the Constitution is broad enough to 
cover an act authorizing copyright of photographs, so far as they 
are representatives of original intellectual conceptions of the author. 
But it is said that an engraving, a painting, a print, does embody 
the intellectual conception of its author in which there is novelty, 
invention, originality, and therefore comes within the purpose of 
the Constitution in securing its exclusive use or sale to its author, 
while the photograph is the mere mechanical reproduction of the 
physical features or outlines of some object animate or inanimate, 
and involves no originality of thought or any novelty in the intellec- 
tual operation connected with its visible reproduction in shape of a 
picture. ♦ ♦ ♦ This may l>e true in regard to the ordinary pro- 
duction of a photograph, and further that in such case a copyright 
is no protection. (Jn the question as thus stated we decide nothing. 
• * * It is therefore much more important that when the sup- 
posed author bue6 for a violation of his copyright, the existence of 


those facts of originality, of intellectual production, of thought and 
conception on the part of the author should be proved than in the 
case of a patent right. In the case before us we think this has been 
done. ♦ ♦ ♦ These findings, we think, show this photograph to 
be an original work of art, the product of plaintiff's intellectual 
invention, of which the plaintiff is the author, and of a class of 
inventions for which the Constitution intended that Congi-ess should 
secure to him the exclusive right to use, publish, and sell, as it has 
done by section 4952 of the Eevised Statutes." 

In the Sarony case the Supreme Court held that the constitutional 
question whether any photograph was the subject of copyright was 
not without difficulty. It conceded that the ordinary production of 
a photograph might involve no novelty, invention, or originality of 
thought, and that in such case a copyright might be no protection; 
that It was important for the supposed author suing for a violation 
of copyriglit to prove the existence of the facts of originality, of 
intellectual production, of thought and conception on the part of the 
author; and that the proof concerning the photograph involved in 
the pending case showed it to be, not a mere mechanical production, 
but " an original work of art, the product of plaintiff's intellectual 
invention," and that its author was therefore protected by the Con- 
stitution and copyright law in the exclusive right to use, publish, and 
sell it. By implication all other kinds of photographs (as mechan- 
ical snapshots or routine " look pleasant " photographs) are not sub- 
ject to copyright. Extension of the copyright law to protect the vast 
bulk of photographs used for newspaper reproduction is therefore of 
dubious constitutionality. 

(2) In line with the Supreme Court decision that a photograph to 
be protected under the copyright provision of the Constitution must 
be " an original work of art, the product of the plaintiff's intellectual 
invention,' Congress in legislating concerning photographs has 
classed them among works of art in respect to notice or copyright, 
and has made the infringement penalties fit the offense of one who 
reproduces with exactness such a work of art and sells the copy in 
substitution for copies of the original. The copyright law, protect- 
ing the kind of photographs constitutionally subject to copyright, 
treats as punishable infringements the exact reproduction of the pho- 
tograph as a photograph by some superior process which causes the 
product of the infringer to substitute itself for the original and to cut 
down the sales of the original. 


(A) Conspicuous notice of copyright is a disfigurement upon the 
photograph as a work of art and is not necessary to warn against 
infringements by unscrupulous photographers who reproduce and 
sell copies of photographs in place of originals. It is difficult for 
one to commit this offense unintentionally. 

On the other hand, conspicuous notice of copyright on the face 
of the photograph is necessary for the protection oif the newspaper 
against becoming an unintentional intringer, since it reproduces 
hastily from day to day a vast number of photographs copyrighted 
and uncopyrightcd, and is also necessary for the benefit ot the pho- 
tographer, since the credit given to him by attactviw^ Vn\% ^^\sns^ ^a^ 


maker of the photograph is, through the advertising which he secures 
thereby, part of this reasonable and just compensation for the news- 
paper use of his work. 

The photograph, copyrightable as a work of art and to be protected 
against exact reproduction as such, may well have the conspicuous- 
ness of its notice of copyright reduced to a minimum as suggested 
by the proposed law ; but the photograph to be crudely reproduced in 
a newspaper, if copyrightable at all in this aspect, must give a maxi- 
miun of conspicuousness to its notice of copyrights 

If the crude newspaper reproduction of a photograph is an infringe- 
ment, the printing of the name of the photographer is a confession of 
the infringement, and an unscrupulous newspaper will omit this name, 
and, reproducing by inferior processes, can avoid proof of use of 
original photogi-aph. If such newspaper reproduction is not an in- 
fringement, then the way is clear for the newspaper to give to the 
photographer w^ith other comi>ensation the deserved credit for his 
work with the advertising incidental thereto. 

The American Newsj^aper Publishers' Association copyright com- 
mittee in its report adoi)tc(l by the American Newspaper Publishers' 
Association at its last annual convention says on this point: "The 
American newspapers using in regular course of business hundreds 
of ilhistrations every dav, and for this purpose crudely reproclucing 
or liastily modifying and adapting many photographs, uncopyrighted 
as well as copyrighted, are especially liable to be led into uninten- 
tional infringements. It is urged that in justice to the newspapers 
notice of the fact of copyright in the case of a photograph should 
be made even more conspicuous than the existing law provides, and 
that such notice to be effect ive should extend to authorized reproduc- 
tions of copyright(»d photographs in newspapers and elsewhere. The 
copyright bills, however, reduce instead oi enlarging the publicity 
requirement of this notice, classing photographs in this connection 
with works of art upon which the a)pyright notice is viewed as an 
objectionable disfigurement. The existing law requires that * Copy- 
right (date) by A B ' shall be inscribed ' upon some visible portion' 
of the photograph or 'of the substiince on which the same shall be 
mounted." 'J he proposed law requires, in the case of a photographer, 
only the letter C within a circle accompanied by the initials, mono- 
gram, mark, or symbol of the copyright proprietor, ' provided that 
on som(» accessible portion of such copies or of the margin, back, 
* * * or of the subsUmce on which such copies shall l)e mounted, 
his name shall appear." To cause the newspaper reproduction of a 
photograph to l)e classed as an infringement, and to reduce to a mini- 
mum unintentional infringements, the fullest warning of the fact of 
copyright should be given to the newspapers. If a photograph is to 
be protected against such reproduction it should not l>e classed among 
works of art upon the margin or back or mount of which a simplified 
notice of copyright nuiy In* hidden, but should l)enr the copyright 
warning conspicuously on the photographic print itself and upon 
every authorized reproduction of it." 


(B) The i>enalties provided for exact reproduction of copvright- 
able photographs as works of art and their sale in substitution for 


the originals are absurd misfits, involving the harshest injustice 
when applied to newspaper reproductions or imitations Avhich are 
not exact, which are not works of art, and Which do not substitute 
themselves in sales for the originals. 

1. Existing law. Any person who shall print or sell or expose 
for sale any copy of such copyrighted article " shall forfeit to the 
proprietor all the plates on which the same shall be copied * * ♦ 
and shall further forfeit one dollar for everv sheet of the same found 
in his possession, either printing, printed, copied, publislied, im- 
ported, or exposed for sale." 

2. Proposed law. Tlie infringer of copyright is to pay to the 
copyright proprietor such damages as the latter may have suffered 
due to the infringement, as well as all the profits which the infringer 
shall have made from such infringement, and in proving profits the 

IJaintiff shall be required to prove sales only and defendant shall 
le i*e(juired to prove every element of cost which he claims. In 
assessing damages " the court may in its discretion allow * * * 
one dollar for every infringing copy made or sold by or found in the 
possession of the infringer or his agents or employees." 

The proposed law provides that the infringer shall pay to the 
copyright proprietor the damages which the latter has sutfered from 
the inrringement, as well as all the profits which the infringer shall 
have made fjom such infringement, and in proving profits the plain- 
tiff shall be required to prove sales only and defendant shall be re- 
quired to prove every element of cost which he claims. These 
provisions are readily applied to an infringing photographer; but 
how do they apply to an infringing newsf)aper ? No provable dam- 
age is done to the photographer by the imitation of his photograph ; 
rather benefit, if due credit is given him. ^Vliat profits can l^e proved 
as made by a newspaper through using the reproduction of a photo- 
graph on one of its pages? Is the copyright proprietor to prove 
sales of the newspaper containing the photograph, and then is the 
newspaper to show cost of production with the difference treated as 

Erofit? The reproduction of this particular photograph may have 
Ben particularly atrocious and may have discouraged rather than 
encouraged sales. Only a small percentage of sales, if any, can 
fairly be attributeil to any one reproduction of a photograph. At 
the present cost of white paper and of labor, a loss instead of a profit 
will be figured out in the transaction of making and selling a news- 
paper if the advertiser be eliminated from the equation, as he would 
naturally be in this case. 

Then in estimating damages in the discretion of the court there 
is the suggestion of $1 per infringing copy as a measure of damage. 
On this point the American Newspaper Publishers' Association copy- 
right committee report declares: 

" It is unjust, however, even to permit the court in its discretion 
to treat every copy of a newspaper reproducing by inferior j)rocesses 
a copyrighted photograph as an infringing copy of that photograph 
upon which to base an assessment of damages of $1, it the count 
wills, subject to the $5,000 maximum limit of recovery. The pur- 
pose of the provision is to provide liquidated damages when photo- 
graphic copies of copyrighted photographs are sold in substitution 
for the latter, thus directly reducing the copyright proprietor's sales 


and profits. Newspaper "reproduction," whether authorized or un- 
authorized, has no tendency to reduce sales of the original photo- 
graphs; rather to mctease them. The injury, if any, done to the 
copyright proprietor is the unjust withholding from him of the 
small sum customarily paid by the newspapers for consent to use a 
copyrighted photograph. This injury is not increased or diminished 
in accordance with the number of copies issued by the offending 
newspaper. The damages in the two cases are on an entirely dif- 
ferent basis, and the measure of damages which is appropriate in 
one should not even in the nature of a suggestion to the court in the 
exercise of its discretion be applied in the other. For this reason 
there should in the committee s opinion be added to section 19 (b) 
Fourth of the copyright bill an amendment providing in substance 
that the measure of damages, herein suggested, shall not be applied 
in the assessment of damages for infringements by newspapers 
through the reproduction or imitation in their columns of copyrighted 

Discussion of these penalties shows their inapplicability to news- 
paper reproduction or imitations of photographs or other works of 
art. which do not substitute themselves in sales for the originals, but 
the tendency of which is on the contrary to increase sales of the 
oriffinals by advertising them. 

Considerable word manipulation is necessary to construe writ- 
ings of an author to cover any kind of photograph. Photographs 
that are works of art, original intellectual conceptions of the photog- 
rapher, have been thus classified and protected under the copyright 
law against exact reproduction and sales of the unauthorizea copies 
in substitution for originals and to the damage of the photographic 
author. Can penalties framed to punish such damage-working in- 
fringements of works of art be extended to the nondamaging though 
unauthorized rej^-oduction or imitation of a copyright photograpli 
in a newspaper? 1'he illogical, absurd, and unjust results are obvious 
of taking the penalties framed to punish a photographer who steals 
another pliotographer's brain work and sells his fraudulent copies in 
substitution for originals, with the result of cheating the author in 
every siich sale, and of applying penalties to the newspaper, 
which does not reproduce the photograph to sell in kind in competi- 
tion with the author, and whose reproductions as an advertisement in- 
crease instead of diminishing sales of the original photograph as a 

The effort is to take this dubious subject of copyright under the 
Constitution, to extend protection given to it beyond protection 
against exact reproduction as a photo^-aph, and losses or sales by 
substitution of unlawful copies for originals, so that it will cover the 
crude reproduction or imitation of the photograph in the daily news- 
pajxTs, and the still cruder imitation or reproduction of the news- 
paper imitation of the copyrighted photographs. 

The .successive steps of this stretching process are as follows: 

Photographs, so far as they represent intellectual conceptions, are 
*' writings of author, protected by court." 

Pliotographs, whether mechanical and routine (as kodak snap- 
shots) or intellectual conceptions, are '* writings of author, protected 
by court." 


The reproduction of photographs by photography, which damages 
photographer, by substituting in sales the copies for original photo- 
ffrajr'is, is an infringement of copyright law, since photographs as 
"writings of author are protected by court/' 

The crude imitation of a photograph by inferior processes in a 
newspaper, and the cruder reproduction oi this crude imitation by 
another newspaper copying from the first newspaper infringer, are 
infringements ot the copyright law, since photographs as " writings 
of autnor are protected by court." 

Thus by successive stretchings the constitutional protection which 
is given to the writings of an author against those who would steal 
the product of his brain and cheat him of fair compensation for his 
intellectual labor is extended to punish the crude newspaper repro- 
duction of a crude newspaper imitation of a kodak snapshot photo- 
graph, involving no intellectual labor on the part of the photogra- 
pher, and the infringement itself involving no damage in the sense 
that the theft of the right to reproduce tlie writings of an author 
involves such damage. Newspaper reproduction means advertising 
of and benefit to sale of photographs as photographs. 


(c) All the pains and penalties of the law evoked under the con- 
stitutional protection provided for the author in respect to his writ- 
ings are to be applied in misfit, illogical, and unjust fashion to the 
nondamaging newspaper imitations of copyrighted photographs. 
Under the provisions of both the House and the Senate bills the 
newspaper infringer may be prosecuted, fined, and imprisoned. On 
this point the American Newspaper Publishers' Association copyright 
committee report says : 

" The provision of the copyright bills making a misdemeanor of 
willful copyright infringement for profit may be reasonably criti- 
cised as too drastic, at least in its application to dubious infringe- 
ments through the newspaper reproduction of photographs. The 
Senate bill provides as punishment for this new misdemeanor im- 
prisonment for not exceeding one year, or a fine of not less than $100 
nor more than $1,000 and committal to jail until tlie fine is paid. A 
minority of the Senate committee on patents reports against this 
provision, asking why the infringer of a copyright should be subject 
to a criminal prosecution, with the possible inlliction of a penalty 
that will attach to him the badge of infamy, while the infringer of a 
patent right is subject to no criminal prosecution or penalty. The 
minority considers that the copyright proprietor is amply protected 
by the numerous remedies afforded by the bill and that there is no 
occasion for this drastic deterrent. 

If the proposed punishment is too severe for the infringer of the 
constitutionally protected rights of an author in his writings, it be- 
comes more grossly excessive and unjust when applied to the news- 
paper nondamaging infringer of rights, which the Constitution may 
not have intended to protect. The copyright bills strive to systema- 
tize the law on the subject, to lav down general principles applicable 
to as many as possible of the subjects of copyright, and to reduce to 
a minimum the exceptions from these general principles. The more 
successful these e^orts the greater the harclship?* inflicted vv^q.vv sJcl^ 


infringers of tho doubtful subjects of copyright. When major 
offenders, minor offenders, and accused who may not under the Con- 
stitution be offenders are all subjected to the same rules of conduct 
and to the same criminal prosecution for alleged misconduct, gross 
inequities are sure to develop. The United States Supreme Court, 
through Justice Miller, in the Sarony case, said : " We entertain no 
doubt that the Constitution is broad enough to cover an act author- 
izing copyright of photographs, so far as they are representatives of 
original intellectual conceptions of the author." How many of the 
photographs utilized as the basis of newspaper illustrations represent 
" original intellectual conceptions of the author," and how many are 
purely mechanical and unintellectual ? Assuming for the moment, 
however, that all photogi-aphs are subject to copyright, it is clear that 
crude newspaper reproductions of them, if infringements at all, are 
not the direct, injury-working infringements which the law seeks 
to prevent or punish by severe penalties. Why should the doubtful 
infringement of a dubious subject of copyright be punished as a 
criminal act, when unmistakable infringements of constitutionally 
protected patents are not criminally punished at all? Either photo- 
graphs should be differentiated in this provision from other subjects 
of copyright, or news])aper reproductions of photographs should be 
diireivntiated from other infringements of photographic copyright, 
or there should l>e no criminal prosecution of any infringer oi copy- 
right. Unless there can be excepted from its application those to 
whom it does not justly apply, the whole section m respect to crimi- 
nal prosecution should be eliminated. 

8U(;<;estions op amendment. 

3. vSince only a fraction of the photographs reproduced in news- 
paj)ei-s arc snl)jocts of copyright under the constitutional provision, 
and since the co])yright law concerning notice, penalties, and prose- 
cution is evidently not framed to include such newspaper reproduc- 
tions among the infringements to which its provisions apply, either 
the ne\vsj)aper reproduction or imitation of a copyrightea photo- 
gi-aj)h should be declared not a punishable infringement at all, or it 
should 1h» scrupulously discriminated from other infringements of 
photogra])hic copyright and special provision be made in respect to 
it as affects (1) notice of copyright, (2) penalties, and (3) criminal 

It is Ix'tter that newspaper reproductions of photographs should 
be taken outright from the list of punishable infringements, and that 
the photographer should be required to find other protection than 
the copyright law against the newspaper which utilizes his work 
without paying the usual slight compensation, than that the news- 
pa j)ers should w left expost»d to the possible attacks of unscrupulous 
photographic cojnright proprietors m semi-blackmailing operations 
under the sweeping and drastic and misfit provisions of tlie proposed 
a)pyright laws. In this choice of evils the one to be suffered by the 
ph()tographer is insignificant in comparison. 

The first proposition of the publishers is consequently that Con- 
gress except such newspaper i^eproductions of pnotographs from 
classificati(m as substantial and punishable infringements or the copy- 
right law by inserting at the end of section 5 of Senate bill 2900-H. K. 


11794 (p. 4, line 5) and H. K. 2i;^S. 2409 (p. 4, line 2) the follow- 
ing words: 

'' Provided also that the reproduction or imitation of a photograph 
in a newspaper shall not be construed as an infringement of the copy- 
right of such photograph." 

If newspaper reproductions of photograj)lis are not thus exempted 
from the operation of the copvright law the alternative proposition 
of the publishers takes the following shape: 

1. Insert in H. R. 24;J-S. 2409 (p. 10, line 22), sec. 19, and in S. 
2900-H. R. 11794, sec. 18 (p. 11, line 4), after the word '^appear" 
the following words: "To protect a photograph against newspaper 
reproduction the notice of copyright shall consist of the word ' copy- 
right,' accompanied by the name of the copyright proprietor, printed 
conspicuously on the face of the photograph." 

2. Insert in H. R. 243-S. 2499 (p. IG, line 4), sec. 28, and in S. 
2900-H. R. 11794 (p. 17, line 12), sec. 27, subsection second, after the 
word "sculpture" the following words, "or the reproduction of a 
photograph in a newspaper"; and in the same section at end of the 
same subsection, after the word "employees," insert the followin 
words: "In the case of a newspaper reproduction of a copyrighte 
photograph only actual damages or such damages as to the court shall 
appear to be just, shall be assessed, and such damages shall in neither 
case exceed the sum of $50." 

3. Insert in H. R. 243-S. 2499 (p. 17, line 13), at end of sec. 31 
and after word "paid," and in S. 2000-11. R. 11794 (p. 18, line 24), 
at end of sec. 30, after word " court " the following words : " Provided 
that newspaper reproduction of i)hotograi)hs shall not constitute an 
infringement punishable as a misdemeanor under this section." 

Easy Money fob Photographer — Editors were ** from Missouri," but 
BosTONiAN "Showed" Them — Uepuklic gave up $250 for Infringement of 
CtoPYBiGHT on Second Publication of a Cut, although Full Credit had 


Chabge of Filing Rooms. 

Henry Hnvelock Pierce, a photoj^rapher at 729 Boylston striM^t, Boston, ad- 
dressed a letter to the St. Tx)uls Republic, under date of January 27, 1008, stat- 
ing that in its issue of January 23 had appeared a picture of Hon. Henry 
Gassaway Davis, which was made by Pierce and copyrighted jointly by Pierce 
and J. C. Strauss, a St. Louis photographer. Pierce called attention to the fact 
that he had not given permission to publish this picture without credit line 
and copyright marls, and inquired " what the Republic was going to do about 

On looking up the matter Managing Editor McAuliffe found that In the city 
edition of the Republic of January 23 there was printed a picture of Mr. r>jivis 
on page 1. The cut did not, however, appear in the fast-mail eilition, which 
goes out of town, and this gave rise to the thought that perhai>s Mr. Strauss 
had called Mr. Pierce's attention to the matter. 

In connection with a news item the Republic wanted to use a picture of Mr. 
Davis and one was located in the files. It was Inclosed in an enveloiK? which 
bore the Imprint of the cut. but there was nothing to indicate that the picture 
from which it had been made was copyright etl. The cut had been on file in the 
office since Sei)tember 6, 1004. when it was us(»d in the fast-mail e<lition of 
the Republic with the following line beneath it: "Copyright ir04 by J. C. 
Strauss and H. H. Pierce." 

Had the cut been filed in the usual way the cli|:ping would liave been attached 
to the envelope, but in this case only the imprint <»f the cut was on the envelope, 
and hence the man who looked it up in the hies hud no idea that it was made 
from a copyrighted picture. 


A day or two after tlie receipt of Mr. Pierce's letter Mr. iMcAullffe called on 
Mr. Strauss and showeil him the letter from Pierce. He did not seem at all 
surprised. He said that th{3 matter was in Piercers hands and any settlement 
made by Pierce would be satisfactory to him and in full settlement of any 
claim he and Pierce might have jointly or individually. 

At Mr. McAullfTe's request Mr. Strauss wrote a letter to Charles W. Knapp, 
president of the Republic, to this effect. As a matter of fact it was simply 
a communication sayhig that Strauss would assign his claim to Pierce. 

While at the Strauss studio Mr. Goodlove, Mr. Strauss's assistant, admitted 
that he probably had given the Republic the Davis picture in 1904 to use with 
credit to Strauss and Pierce, which the Republic did. Search was made, but 
the picture itself could not be located in the office. It was evidently received, 
however, and i)ermis»ion given to publish It with credit. If not, doubtless a 
complaint would have bwn made at that time. 

On February 1 Mr. McAullfPe wrote Mr. Pierce explaining the circumstances 
under which the Republic happened to use the cut on January 23 without the 
credit line. Mr. McAuliffe told him also that he had called on Mr. Strauss 
about the matter and that Mr. Goodlove remembered giving the Republic several 
years ago the original picture, which was published with full credit. 

Mr. McAuliflfe added that it was quite likely that Mr. Davis would figure in 
the news again: and if it was desired the Republic would use the same picture 
of him with full credit, or would use a new picture, giving full credit to the 
photographers. Mr. McAuliflfe called his attention to the fact that the picture 
had not been fiU^l in the usual way and therefore the mistake of the man who 
got it out for use on January 23 was excusable. 

T'nder date of February 17 Mr. Pierce replied, stating that "photographers 
had been asked to a(<^ept similar explanations so frequently from editors that 
this sort of an excuse did not appeal with much force." He added, " If the 
same consideration were given i)hotographers who accommodate the newspapers 
as is given by the i>hotof:ra pliers to the newspaiiers these frequent explanations 
from the editors would never be necessary." 

Mr. Pierce said that he had received from Mr. Strauss a copy of a letter 
which he address^nl to Mr. Knapp, showing that Strauss and Pierce were 
working together on the demand for comiwnsation from the Republic. Mr. 
Pierce said that Strauss merely i)ermitted him (Pierce) to represent Strauss 
hi the adjustment of the matter. 

After telling what trouble and expense he went to in obtaining the picture of 
Mr. Davis, Mr. Pierce made a demand for $2r>(\ He closed his letter with the 
statement that his critleisms were ** a result of the treatment accorded photog- 
raphers in a general way by the daily press of the country." 


After the receipt of this letter Mr. McAuliflfe again called on Mr. Strauss and 
aske<l him if he did not think it unwise to persist in such a demand and if he 
had not !)etter suggest to Mr. Pierce that the Republic had aimed to treat him 
fairly and stood willing to print the picture over again with full credit, and 
Mr. Strauss replied that he would not interfere. 

On February 28, General Manager Henry N. Gary, addressetl a note to Mr. 
Pierce further explaining the accident by which the Republic hapi>ened to use 
the cut and stating that he was prepared to carrj' out the proposition made to 
him, namely, to give full credit for the cut when used next time. 

The next the Republic heard from Mr. Pierce was In a letter to Mr. Strauss, 
dated February 21». In this Mr. Pierce told Mr. Strauss that he had written to 
Mr. McAuliflfe lu. iking a reas(.nable demand on him for $250, and continued: 


"Not knowing whether he has notified you or not, I wish to call your atten- 
tion to the matter. As I hav** had no word from him and as I am now leaving 
town and can not bother with the matter, unless I hear something definite from 
him In ten days. I propose to bring suit." 

Mr. Strauss s<»nt this letter to Mr. Gary to read, and Mr. McAuliflfe returned 
It to Mr. Strauss the following day. 

While at the Strauss studio for the last time Mr. McAuliflfe asked Mr. 
Strauss If he intended to push the demand for $250. Mr. Strauss said that he 


positively would not interfere. Mr. McAuliffe asked him if he realized what it 
meant to him, and he said : 

'* Yes; I do not care what the Republic does about it." He admitted that. he 
was in on the " deal," and gave Mr. McAuliiTe to understand very plainly he was 
using Pien*e to make the demand on the Republic. 

Mr. McAuliffe reported the result of this interview to Mr. Car>% who on March 
9 forwarded to Mr. Pierce the Republic's check for |250, in adjustment of the 

The Chairman. I will now call upon Mr. MacDonald, who repre- 
sents the Photographei*s' Copyright League of America. 


Mr. MacDonald. Mr. Chairman and gentlemen of the committee, 
it Avas not the intention of the Photogi'aphers' Copyright League of 
America to say anything here except that they were much pleased 
with the two bills of Senator Smoot and Mr. Currier, until it came 
to our notice this afternoon that a statement of the American News- 
paper Association had been filed. 

We feel that the bill as it is written, so far as our provisions are 
concerned — the provisions that apply to us — is perfectly satisfactory. 
We wish to call attention to the fact that the provisions applying to 
photogra])hy are practically uniform in all of the four bills — that 
the provisions applying to photography are practically the same as 
were a^eed on by the conference, and I wish to call attention to the 
probability that there is more or less justice in what we have asked 
lor, in that it has not been disturbed. 

We have appeared at two hearings, answering practically the same 
questions that we are called upon to answer in this statement of the 
American Newspaper Publishers' Association's brief of to-day. 

Their first and most important suggestion is that they wish an 
amendment to the effect that " newspaper reproduction of a photo- 
graph shall not be considered an infringement of the copyright." 
In their statement they hark back to the case of the Lithograph Com- 
pany V, Sarony, of 1883, practically the first copyright case involving 
a photograph that was ever tried. They quot« from it continually, 
but fail to quote from the later cases, hundreds of which have been 
tried and decided. 

The Newspaper Publfshers' Association place particular stress on 
Judnfo Miller's words in awarding a verdict in a -particular case, 
in which he describes the picture as " an original work of art, the 
product of the plaintiff's intellectual invention," and then they pro- 
ceed to the deduction that " extension of the copyright law to pro- , 
tect the vast number of photographs is therefore of dubious con- 

It is not necessary to call the attention of this committee to the 
fact that photographs as copyrightable matter have been on the 
statute books since 1865, and that photogi'aphs are in all probability 
as nearly intellectual creations as the average news record in a news- 
paper — ^infinitely more entitled to copyright, for example, than the 
news of to-day's weather in Paris ; and as much entitled to copyright, 
probably, as maps and charts and the average periodical. Beyond 


any kind of question you must admit that photographs contain as 
much intellect as a directory. In every one of thes>e four bills and 
in the present statute it is admitted that all these items are proper sub- 
jects of copyright. It seems to me not open to question that there 
is copyright matter in a photograph. 

It is easy to see why the American Newspaj^er Publishers' Associa- 
tion might want liberty to use photographs without paying for 
them and why they might wish to be allowed to use our photographs 
without our leave, or photographs of yourselves without your leave. 
An item of this kind put into the bill is going to destroy absolutely 
a quality which, though not intended originally as a principle of 
copyright, is nevertheless one of the attendant features — that of 
privacy. There are many photographs which are copyrighted for 
the sole pur[)ose of reserving them from the public — ot preventing 
the public from using them. It is something that applies to all or 
us, mdividually. There may come a time when it would be very 
important for some member of your family to be protected from the 
publication of their photograph. An item like this is going to render 
it impossible for you to withhold such photograph from publication. 

They talk much about works of art, and mention photographs in 
com])aris<)n, invariably to the detriment of the photograph. But I 
want to call your attenticm to the fact that there is in the photograph, 
despised as it is by the newspaper people, a distinguisliing record — 
a record of a kind that the newspaper-reading public want, and the 
newspaper pul)lishers know that their public want it, and they know 
that they must use it, and they try to get it on the very cheapest 
terms possible. I have heard it suggested within a very few aays 
that thej^ did not expect to get what they a^ked for, and that it was 
merely a matter of cutting our protection down to the very lowest 

We have never asked for anything that we did not believe we were 
thoroughly and proj^erly entitled to. We have not put forward any 
item with the idea of creating a compromise. 

Kepresenlative Law. Do I understand that you think vour inter- 
ests are, or are not, protected by the Smoot and Currier bills? 

Mr. MacIX)nald. We think that they are amply protected by these 
bills. We merely protest against an alteration in the bills by the 
insertion of this proposed amendment. 

One other point: "To protect a photograph against newspaper 
reproduction, the word ' copyrighted ' shoultl l>e printed conspicu- 
ously on the face of the photograph. This is clearly desirable to 
protect the photograph — even from private use." 

In order to protect your picture from publication it is necessary 
to print conspicuously on its face a legend which will make it and 
its pul)lication undesirable. We think that the provisions of the 
Smoot and Currier bills will fully answer this purpose. The News- 
paper Publishers' Association admit that a " C inclosed in a circle 
is a warning. Having admitted that fact, it constitutes, it seems to 
me, as ample a warning as if it were printed across the' face, not of 
the photograph, but of the subject. 

We think we should not l)e legislated against in a matter of this 
kind. Our works are works that must be capable of going into 
homes, even though they are copyrighted. 


In New York we say, " If you see it in the Sun, it's so." In yes- 
terday morning's Sun I saw an editorial which, on the subject of the 
President and the wood-pulp tariif , went on to say : " ^\ e can not 
for the life of us see any reason why there should be any special 
legislation on the part of Congress in behalf of newspapers. There 
can not be and shall not be any privileged class. We desire no pecun- 
iary benefits nor advantages that are not common to the whole 
people. We consider the proposition immoral." 

Of course, because " It's in the Sun, it's so." 

The Sun thinks that is so, and we are sincerely happy in the belief 
that other newspapers think that it is so, and that this brief that 
they have put in tney have not quite intended, or perhaps have not 
quite understood. 

There is one other item which I wish to call to your attention. We 
particularly desire that this bill as it is written shall stand. There 
was a suggestion on the part of Mr. Walker yesterday in which a 
change was proposed in the manufacturing clause. The proposi- 
tion was that you insert, after the w^ord "lithograph " the words 
"or other process." We wish most emphatically to protest against 
words that are so loose as these, if their looseness would comprehend 
photography. We very strongly feel the necessity for Avhat is prac- 
tically international copyright in photography. We are as American 
in our sentiments as Mr. Sullivan and his people.- We represent 
30,000 studios in the United States, each owned and operated by an 
American. We repreisent, all told, approximately 200,000 employees. 
We feel that the mterests of the 30,000 proprietors and the 200,000 
employees are going to be served by our being capable of getting 
copyright in Great Britain. 

Mr. Currier questioned Mr. Livingstone this morning on a mat- 
ter arising from something that Mr. Livingstone said, "that we are 
not being treated in the same way that we treat other people," and Mr. 
Currier was right. It is possible for an Englishman to obtain in 
the United States a copyright on a photograph made in England 
to-day by complying wuth a set of conditions that the law never 
originally intended him to comply with. It is not possible, however, 
for an American to get copyright in England, and wo feel that it 
we are suflSciently liberal to permit the Englishman to straight- 
forwardly get a copyright here, we can apply to the one man who 
is capable of extending the treaty and ask him to withdraw it if we 
don't get full reciprocity. The President of the United States, as 
I understand, is capable of withdrawing the treaty. We think it 
would be distinctly to our advantage to exclude photographv from 
the manufacturing provision and permit the Tv^^ ' ^tration of nega- 
tives which are not made in America, both by Americans, to our 
distinct advantage, and to foreigners for the effect which is bound to 
come. You need not fear for an instant, if this privilege is extended 
to photographers, but that photographers will get copyright pro- 
tection in Ureat Britain. 

Representative Currier. I should like to put into the record in 
this matter the decision of the court in Oliver Ditson against Lit- 
tleton and others, which holds that a musical composition is not 
within the clause in reference to the manufacture in the United 

39207—08 n 


The Chairman. Without objection, that will go in. 

I>eci8lon on appeal in the case of Ditson v. T^ittleton. that the nmnnfaoturing 
clause in the act of March 3, 1891, does not include musical compositions that 
are published in book form, or made by lithographic process. 

Oliver Ditson Co. v, Littleton et al. 

(Circuit court of appeals, first circuit. April 25, 1895. No. 111.) 

Copyright — Musical compositions — Manufacture in United States, 

The proviso in section 3 of the copyright act of March 3, 1891, that " in the 
case of a boolc, photograph, chromo, or lithograph," the two copies required to 
be delivered to the Librarian of Congress shall be manufactured In this coun- 
try, does not include mere musical compositions though published in book form, 
or made by lithographic process. (G2 Fed., 597, alfirmed.) 

Appeal from the circuit court of the United States for the district of Massa- 

This was a suit in equity by Alfred H. Littleton and others against the 
Oliver Ditson Company for infringement of the copyright on three musical 
compositions, two of which are in the form of sheet music, and one (a cantata) 
consists of some 00 imges of music bound together In book form, and with a 
paper cover. Two of these pieces were printed from electrqtype plates and one 
from stone, by the lithographic process. An injunction was granted by the 
circuit court, after delivering an opinion, which is reported in 62 Fed^ 597. 
The defendant appeals. 

Linus M. Child and Causten Browne, for appellant 

Lauriston L. Scaife, for appellees. 

Before Putnam, circuit judge, and Webb and Aldrich, district judges: 

Peb Curiam. We are satisfied with the conclusion of the circuit court In 
this case, and adopt the opinion of the learned Judge of that court, except that 
we do not deem it necessary to investigate the history of the bill which resulted 
in the copyright statute of March 3, 1891 (26 Stat,, 1106), in question, or to 
determine how far that history is pertinent to the construction of the act. The 
case deals with copyrighted matters alone, which are only the musical parts, 
or notations, of complainant's publications. We are not called on to consider 
a case in which more than the notation is covered by a copyright. That musical 
oomiKisltions, as such, differ, in the view of the copyright law, from books, as 
such, necessarily follows from the fact that when musical compositions were 
first made copyrightable the penalty for infringing was made expressly and 
distinctively other than that for infringing the copyrighted book. (Act Feb. 
8, 3831, 4 Stat, 437, 438, sees. 6, 7.) And so it stands in the present stat- 
ute. (Act Mar. 3, 1891. 26 Stat, 1109, sees. 7, 8.) There are other par- 
ticulars in which the statutes make the same distinction, but in this one the 
result is unavoidable. What were copyrighted here were clearly musical com- 
positions, and nothing else, and the distinction thus made by these penal pro- 
visions can not be maintained unless the result reached by the circuit court 
is accepted. The word " lithograph," found in the proviso in section 3 of the 
statute under consideration, represtmts only a subdivision of the matters 
embraced in the word " print," in the same section, which gets its meaning and 
limitation, for the puri)08es of this statute, from its immediate association with 
the words "engraving, cut." This Is emphasized by the third section of the 
act of June 18, 1874 (18 Stat, 78), which expressly limits the w«^rd to pictorial 
illustrations, or works connected with the fine arts. Moreovei. the introduc- 
tion of the proviso by the words ** in the cas(»" constitutes a h»gislative selection 
from what precedes it, and shows that the qualifying effect of the proviso was 
intende<l to be limited to a part only of the things named in the body of, the 
section. These words necessarily make the whole section in pari materia.* It 
is true that in some parts of the statutes the words " book," " print," and 
"musical com I position," refer to the intellectual conception as the essential 
element, and in other parts may refer more particularly to the material form 
In which it Is expressed: but nowhere does either element exclusively exist, 
because no intelle<'tual conception is copyrightable until it has taken material 
Bbape. Therefore, there is no reason for holding that the use of the words 



" book, photograph, chrome, or lithograph," In the proviso. Involves a departure 
from the distinctive idea appertaining to either in other parts of the statutes 
touching the subject-matter of copyright. If the statutes were of doubtful mean- 
ing, the history of the bill, the omission of the words " dramatic comi>osition " 
from some of the provisions of the statutes, the contemporaneous construction 
by the departments or officers of the United States, and perhaps other proposi- 
tions urged upon either side, might have weight; but, in a case so clear as the 
one at bar, we do not deem it necessary to invoke such aids, or to note the con- 
ditions or limitations under which such considerations should weigh in the in- 
terpretation of doubtful statutory provisions. The decree of the circuit court 
is affirmed. (67 Fed. Rep., p. 905.) 



The Librarian of Congress. As to the effect of the proposed term 
of copyright as compared with the existing term, I have a compilation 
here covering the cases of 486 deceased American authors of promi- 
nence. They comprise writers on all subjects — beginning with com- 
pilers and going all the way up to poets and dramatists. Of these, 155, 
or about 32 per cent, would have lost by the term consisting of the re- 
mainder of their lives and thirty years after death, as against the 
existing term. Two hundred and forty would gain, and in the cases 
of about 90 the result would have iJeen indifferent. They would 
have gained on certain books and lost on others. 

The average age of these authors at death — ^the general average — 
was about 66 years. Of course, the results as tabulated here are 
devoid of the interest that would result from examining particular 
cases. I understood Chairman Currier to say that he thought that 
even these figures would be of interest in the record. 

The Chairman. It will be put in, without objection. 

The Librarian of Congress. The living author always expects to 
produce his magva opera within the last twelve years of his life. 

The table presented by the Librarian of Congress is as follows: 

Term of copyright, 

[Effect of proposed as compared with existing term upon 486 deceased American authors 

of vogue or prominence.] 


Useful arts and medicine 

Scientists — 


Jurists and publicists - 

Philosophy, theology, education 

History, biography, travel 

Essays and miscellanies 


Poets and dramatists 

General average- 










age at 





Posthumous: Only 38 works of 27 authors. 



Mr. Hale. Mr. Chairman and gentlemen of the committee, I am 
interested in the practical enforcement of this law, and with that 
in view I wish to mvite your attention to some of the procedure pro- 
visions by which this property right must be enforced in the courts. 
I call your attention to section 38 of the Smoot bill, which provides 
that an action may l>e brought in anv district of which the defendant 
or his agent is an inhabitant, or in wliich either of them may be found. 

I wish to protest against a provision under which suit may be 
bi ought against a principal in a district where his agent may be 
found and served. That is contrary to the tendency oi the Federal 
law. It is a provision in section 38 of the Smoot bill. 

Representative Currier. Do you think it has that effect as it now 
stands ? 

Mr. Hale. I think that a principal doing business in New York 
might l)e sued in California or whei*ever a book agent is selling his 

Representative Currier. You would eliminate the words "or his 
agents " ? 

Mr. Hale. Yes; and if you eliminate those words that will leave 
the law as it now is. 

Representative Legare. AVhat is your rea.son for that? 

Mr. Hale. There is no reason for changing the present law. A 
suit now may be brought in any district where the defendant may be 
found and served. That is the present law. 

Representative Legare. My recollection is that it was desired to be 
put in. 

Representative Currier. The bill as originally introduced provided 
that a suit may be brought anywhere, with the result that a man 
living in New Vork might be sued in Manila. 

Mr. Hale. There is a very great hardship in taking publishers who 
have an establij^hed place of Dusiness and requiring them to defend 
in distant places iiifrin<rement suits. There are afl sorts of objects 
in bringing suits. The judiciary act provides distinctly that no per- 
son shall be sued in any district other than that of which he is an 
inliabitant, with the single exception that when there is a diverse 
citizenship the suit may be brought in either. 

Rcpres(»ntativc Currier. I believe it was the makers of directories 
that wanted that in. 

Mr. Hale. To sue a principal and serve his agent would, I think, 
be an anomaly in the law, and I would suggest Uiat that be omitted. 

Then as to section 39. I favor and commend as us(»ful the first part 
of that section, which provides that injunctions that are granted may 
be served and enforced in any district of the United States, but I 
think the clause should end with the word " defendants " upon line 
7 of page 23, and that the remainder of that clause, which provides 
that a motion may be made by the defendant in any other district 
to dissolve that injunction, certainly should be omitted. I think that 
is an anomaly. AVhen an injunction is issued, the defendant has had 
his day in court. There is a speedy remedy granted by appeal to 
the circuit court, and he should oe confined to his remedy by appeal, 
and should not have recourse to another judge in a distant district. 
I think that is an anomaly. 


Then, even if some such provision should be desirable to be copied 
into the law, I think it should be made a little clearer. In the first 
place, that says " any " injunction. It is not confined to a preliminary 
injunction or temporary restraining order. 

Then, again, it is iu)t made clear what effect an order panted in 
another district would have on an appeal taken from, for mstance, a 
preliminary injunction. Suppose a preliminary injunction is granted 
m one district and the record sent up on appeal, and before that is 
heard a motion is made to dissolve the injunction. What becomes of 
it? Suppose there is an injunction granted on final hearing? The 
law is uncertain. Now, does it say anything about an appeal from an 
order made in another circuit ? 

There will be a great deal of confusion in the laAv if it is allowed 
to stand as it is. So I would respectfully petition against that. 

Just one word upon the rental provisions. I am authorized by Mr. 
Jenner to state that he concurs in the idea that composite works pre- 

f)ared by a multitude of employees, such as dictionaries, directories, 
egal digests, encyclopedias, etc., should not have these rental pro- 
visions applied to them. In that connection he ridicules the idea that 
the publishers' interests in plates is one demanding consideration.' 
That is not the main thing. The main thing is the work in new And 
revised editions. It is just that class of work that Avill be renewed, 
because the labor of going back and making a new edition is pro- 
hibited unless you can bufld up on what went before. You can see 
how, otherwise, a great property would be sacrificed. 


Mr. Walker. Mr. Chairman and gentlemen, there are a few points 
to which I wish to call the attention of the committee. First as to 
section 16 — ^the manufacturing clause. I do not wish to submit to 
the committee any argument in favor of any particular programme, 
but only say that it is important in drafting that section to use 

Shraseology that shall be free from ambiguity. I suggested yester- 
ay the substitution of the word " other " for the word " litho- 

My suggestion has been antagonized ; and perhaps it is too compre- 
hensive, l^t if you stop short of using the word ** other " it is abso- 
lutely essential that you use correct phraseology. That word " litho- 
grapnic " is too general. Originally it was confined to lithographing 
on stone. Recently planographic printing was done on aluminum 
and sometimes on zinc. Some gentlemen will say that one of those 
forms of printing is the same as the other. There can be no litho- 
graphic printing, however, except printing on stone. I am very 
clearly of opinion — and I am acquainted with all those branches of 
photomechanical printing — that aluminum printing and zinc print- 
ing should either go in or go out with lithographic. But in order to 
make it clear you should use some other word than " lithographic." 

There are other methods of photomechanical printing, such as re- 
lief printing, intaglio printing, etc. It is impossible to take time to 
explain these distinctions now, becatise the committee can not spare 
the time. But the matter should be attended to with technical accu- 


Then, as to section 19, in respect to the notice that should be given 
on copyrighted articles, I have onlv one criticism to make on that 
section. I would suggest that on line 17, of page 10, a pencil be 
drawn through the words " or the abbreviation ' Copr.' '' Tlie sec- 
tion provides that in respect to photographs the notice shall be given 
by a circle around the letter. The purpose of the notice is to give 
information, and while I, having read this bill, would know what 
" Copr/' means, when I find it on a bill, some other person would 
never know and would never find out what " Copr." means. There 
is no reason why, in the case of a book, the entire word " Copyright '' 
should not l>e written out. 

Representative Legare. The " Copr." might be taken for " incor- 

Mr. Walker. Yes. 

Section 28 is the section that prescribes penalties for infringements. 
Near the bottom of page 16 and at the top of page 17 I read the 
following : 

(c) To deUver up on oath, to be Impounded during the pendency of the action* 
upon such terms and conditions as the court may prescribe, all articles aHe^ed 
to Infringe a copyright. 

Now, it is easy to allege that articles infringe a copyright. That is 
altogether too drastic. We have never had any such law in this 
country, and I hope we never shall have. A man should have his day 
in court before his property is taken from him. 

Representative Curriek. The Kittredge bill, I think, says that a 
man *^ nuist deliver up " and so forth, '' as the court may order." 

Mr. Walker. I was just coming to that. That is the next para- 

Representative Legare. What would you do with that word " al- 

Mr. Walker. I would cut the whole se<;tion out. 

Rej)resentative Legare. But that was strongly urged before the 

Mr. Walker. Certainly; there are men who want "the earth and 
the fullness thereof," btit the question is, Will Congress give it to 
them ? 

Representative Legare. If we change that word " alleged '' would 
that do? 

Mr. Walker. Xo. " To deliver up on oath for destruction all the 
infringing copies or devices, as well as all plates, molds, matrices, or 
other means for making such infringing copies as the court may 

When I appeared before the committee a year ago last June that 
phraseology "as the court may order" was not in the paragraph. 
There th<' statute provided that all this ix^rsonal property should be 
al)M)lntel\' destroyed from the face of the earth. But gentlemen 
nuKlified it last vear, perhaj)s in response to my criticism, by pro- 
viding that this Ih* done only so far as the court may order. But I 
do not think that Congress will place upon the court the duty of 
saying that anyone infringing 

"The Chairman. But it was not used at that particular time for 
anv other purj)ose. 

Mr. Walker. But it might be used. 


The next section to which I wish to call attention is section 34, on 
page 20. That is the para^aph that was the subject of the eloquent 
speech of Mr. Jenner. I wish to state to the committee that having 
heard all that Mr. Jenner said and all that Mr. Putnam said, and 
having studied the subject of copyright so long that my hair has 
grown white, I wish the committee could see its way to changing it so 
that it would read that books might be imported not more than one 
copy at one time for use and not for sale. 

Kepresentative Currier. Would you confine that altogether to 
books of foreign authors? 

Mr. Walker. Certainly, and one copy only. 

Now, section 37 on page 22 deals with an important matter. The 
section reads as follows: 

That all actions, suits, or proceedings arising under the copyright laws of the 
United States shall be originally cognizable by the district and circuit courts of 
the United States, the district courts of any Territory, the supreme court of the 
District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and 
the courts of first Instance of the Philippine Islands. 

As to that I would recommend you to exclude the words " district 
and." so as to confine jurisdiction to the circuit courts. I was in-, 
formed that the words " district and " were inserted there by request. 
Some gentleman supposed that there are more district courts than cir- 
cuit courts, whereas in every district of the United States there are a 
district court and a circuit court, and they are held in the same room, 
and by the same judge. One minute he is a circuit judge and another 
minute a district judge. 

Now I come to section 41, because that must be understood in con- 
nection with section 37. Section 41 says: 

That the orders, judgments, or decrees of any court mentioned in section 37 
of this act arising under the copyright laws of the United States may be re- 
viewed on api)eal or writ of error in the manner and to the extent now provided 
by law for the review of cases determined In said courts, resi)ectfully. 

Now, there is plenty of law that provides for appeals from district 
to circuit courts. From the district court a man can appeal to the 
circuit court, and from that to the circuit court of appeals, and from 
that to the United States Supreme Court — making too many appeals. 

Kepresentative Leoare. Are you certain as to your statement about 
district and circuit courts? 

Mr. Walker. Absolutely certain. There is not a district court in 
the United States anywhere without a circuit court being in the same 

Mr. Jenner. That is right. 

The Chairman. Are there not two districts in the ninth circuit? 

Mr. Walker. I could give you the list of the States that belong to 
that circuit, but I will not take the time to do it. Some of the States 
of the ninth circuit compose only one district in all — Washington, 
Oregon, Nevada, Utah, Montana, and Idaho 5 and California is di- 
vided into two districts, so that in the ninth circuit there is a district 
and circuit court for every* State except California, and for that State 
there are two circuit courts and two district courts. I have been fa- 
miliar with the circuit court for thirty years, and have kept track of 
the change in the several circuits. 

Mr. Jenner. How about the northern and southern divisions of 


Mr. Walker. The judge may hold court in either Toledo or Cleve- 
land, but his jurisdiction is coextensive with ]>is district. 

Mr. Jenner. I think you are ri^ht. 

Mr. Walker. I know I am right. 

There is one more important suggestion that I have to make to- 

The Currier bill and the Smoot bill seem to me to be objectionable 
in the sixty-sixth section. The phraseology of the Kittredge bill and 
the Barchteld bill is not C[uite technical in character. 

The Chairman. That is the repealing section ? 

Mr. Walker. Yes; and relates to the retroactive effect — ^a very im- 
portant matter. I can hardly think that Mr. Smoot and Mr. Currier 
contemplated what would be the effect of the language they adopted. 
It reads : 

That all laws or parts of laws in conflict with the provisions of this act are 
hereby repealed, but nothing in this act shall affect causes of action for in- 
fringement of copyright heretofore committed, now pending In courts of the 
United States, or wliich may hereafter be instituted: but such causes shaU 
be prosecuted in the manner heretofore provided by law. 

I see that my criticism should have been aimed at Mr. Barchfeld 
and not at Senator Smoot or Mr. Currier, because I find on reading 
that section that it seems to l>e correct. 

But under the Barchfeld provision there would be a retroactive 
effect, Avhich, although not contrary to the constitutional provision 
about ex post facto laws, would have a very injurious effect by sur- 
prising people after they have effected their infringement by impos- 
mg penalties and other evils upon them of which they had no knowl- 
edge at the time. I wish to sav that time does not permit me to call 
attention to other criticisms wliich I could pass upon all these bills 
if I had opportunity to do so, but I do wish to submit this to the 

Sentlemen or the committee, namely, that a writing that proposes to 
eal with the copyright law so elaborately as either of these bills is 
a necessarily elaborate machine. Copyright is a science, and a science 
can not be mastered in a few minutes, however intellectual we may be. 
Such mastery can only result from contemplation and effort. Wlien a 
man like Cooley sits down to write a book like " Constitutional Limi- 
tations '' he concentrate's his mind on it month after month and year 
after year, and when the book is finished it is a science. And nobody 
will ever furnish the American people with a great work on copy- 
rifi:ht law without giving the subject weeks and weeks of hard mental 
labor and investigation. 

I have ai)peared before patent committees from time to time for 
thirty yeai-s, and have had some exixnience in that line; and I will 
say that I have never appeared before a committee that devoted to 
the work in hand so high a degree of intelligence and industry as 
this committee for the two years. 

You giMitlemen are human and you are also Members of Congress. 
You are distracted by a large number of employments and demands — 
sometimes almost beyond human capacity. So that it seems to me, if 
I may be i)ermitted to make a suggestion, that Congress ought not to 
enact any of these bills at this session, because it is impossible for you 
gentlemen to give the time to eliminate the injustices that the tills 
will certainly ojx^rate if enacted hastily. I should say that you are 
the very men to do it, and I should add that you should do it in the 
summer time, when you can give it leisure for thorough consideration. 


Representative Legare. To return to page 16, where the provision 
is made for the delivering up of the articles to be impounded or de- 
stroyed as the court mav prescribe, wlw is not that proper? Could 
not the court prescribe that the plaintiff ffive bond? 

Mr. Walker. Couits are not infallible, and it is entirely out of 
accord with American jurisprudence to confer such power on judges. 
I have had great experience with courts, and I would say that Con- 
giess should go extremely slow in conferring such great power on 
Federal judges, which they have never had before. It is a dangerous 

Representative Legare. They have such power in other cases. 
They can require a bond in other cases. 

Mr. Walker. But there is no statute on the books of any State 
that authorizes any judge to do anything analogous to that. 

Representative Legare. " Upon such terms and conditions as the 
court may prescribe." We put that in after very careful considera- 
tion. It was strongly urgea. It seems to me that in circumstances 
where a bond should be given to cover damages sustained by the 
defendant, action of that kind could be taken, in the discretion of the 

Senator Brandegee. I do not think they ought to be allowed to 
hale in any article that the plaintiff may allege to infringe, but only 
such articles as the court may deem are an inmngement. 

Air. Walker. Out of an experience of thirty years I recommend 
the committee not to interfere with private property in that way. I 
should not think it right to allow a court to put its strong hand on 
private property on a mere allegation that may not even be sworn to. 

Representative Legare. It says " upon oath." 

Mr. Walker. The defendarft may make oath, but not the com- 

Mr. Cutter. Section 28 says, " If any person shall infi-inge the 

Mr. Walker. I hold that that is altogether too remote. You hark 
back two pages before you find that language. 

Representative Currier. But in the same section. * 

The Chairman. It is under subsection (a) of section 28, and sub- 
section (6) is then divided into four paragraphs — first, second, third, 
and fourth. 

Mr. Walker. Very well. 

The Chairman. And this is subsection (c) of section 28. So I 
think the suggestion is correct — that if any person shall infringe the 
copyright in any work — then under subsection (6) what is he to 
do, to deliver up on oath, all articles alleged to infringe the copyright. 

Mr. Walker. The first condition is satisfied where there is one in- 
fringing article; then all the articles are alleged to be infringed. 

The Chairman. I wish to say that this point has been carefully 
considered at different times, and I will say further, that it was 
decided by the committee that it should remain as provided in this 

Senator Brandegee. But why should they be ordered to deliver up 
goods that did not have anything to do with the infringement ? 

The Chairman. In the printing business, for example, say in the 
printing of posters, there may be one article or part of one process 


that is an infringement, and it was decided the only way to stop the 
repetition of infringement was to deliver up the whole of the para- 

Mr. Walker. I have not been permitted yet to make clear the point 
that wliere a court finds that a defendant has infringed by making or 
selling one book of one particular kind this bill recjuires that he 
should surrender all books that the complainant claims he has in- 
fringed. The difficulty is with the word " all." 

Representative Legare. But you said strike the whole thing out as 
too drastic. 

Mr. Walker. It is too drastic; but, given proof of one thing of 
one kind, the court gets authority to deliver up a great many things, 
which is not right. 


Mr. BuRKAN. As to section 27 of the Kittredge bill, I wish to say 
a word. That section refers, among other things, to infringe- 
ment of a dramatic or dramatico-musical composition, and requires 
a payment of $100 for the first and $50 for every subsequent iniring- 
ing performance: and in the case of other musical compositions, $10 
for every infringing performance. In that short paragraph (the 
fourth) we find the expression "dramatico-musical composition.'' 
AVho can tell what' is a dramatico-musical composition, or " a choral 
or orchestral composition?" It may be an orchestral composition 
and also a vocal composition. 

In construing this particular provision, the people who have to 
construe it would refer to this bill or act. Now, the question is how 
should this owner of the copyright register? 

Representative Cirrier. That could be cui-ed by the insertion of 
a new class. 

Mr. Ik'RKAN. "Dramatico-musical?" 

Representative Ctrrier. Yes. 

Mr. Bi'RKAN. Take a composition like the " Merry Widow " — the 
thing that makes the play attractive, 1 In^lieve, is the waltz. In copy- 
righting an opera the custom is to copyright the vocal score and also 
to coi)yright each number. 

Representative Currier. Do you not think there should be a differ- 
ence in penalties? 

Mr. BuRKAN. It depends on the composition. 

Representative Currier. Would you not think that it would be a 
more serious wrong to a man to infringe the whole than to infringe 
any part of it ? If the numbers are copyrighted separately, as you 
suggest they are, I think there should be a distinction between the 
production of the entire opera and of a single song. 

Mr. BuRKAN. Only the other day I brought an action against a 
manager for taking three numbers of the " Red Mill." 

Representative Currier. The committee came to the conclusion 
that It was a greater damage to the composer to reproduce an entire 
opera than any air from it. 

Mr. BuRKAN. It would l)e in the discretion of the court to say what 
damages that would involve. 

Representative Currier. Would you not have to proceed against 
a man with a civil remedy — if you had drastic remedies? 


Mr. BuRKAN. We have those remedies now. I have proceeded 
civilly in every case in the past four years. 

Representativ.e Currier. Because "you realized probably that the 
penalites now are so drastic that you could not otherwise succeed? 

Mr. BuRKAN. Xot at all. 

The Chairman. AVliat is your object? 

Mr. Burkan. To provide that the penalty shall be $100 in the case 
of all musical compositions. 

The Chairman. But the occasion may be for the benefit of a church 
or some similar organization, or to assist some worthy cause. 

Mr. Burkan. If it were for a church, I doubt very much if the 
court would decide it to be for profit. 

Thereupon the joint committee adjourned until to-morrow, Satur- 
day, March 28, 1908, at 10 o'clock a. m. 

Washington, D. C, Saturday^ March 28^ 1908. 

The committee met at 10 o'clock a. m., at the Senate Reading Room, 
Library of Congress. 

Present: Senators Smoot (chairman), Brandegee, and Gary; 
Representatives Currier (chairman), Barchfeld, Henry, Washburn, 
Law, I^gare, Pratt, and Leake. 

The Chairman. To-day has been set apart for the presentation of 
the views of the parties interested in the provisions or this bill relat- 
ing to musical reproductions by mechanical devices. The committee 
have decided that we can give eight hours, during the day and even- 
ing, to the consideration of this subject, and we have also decided 
as to the division of that time. We want tjie parties taking the 
affirmative of this argument to open the argument, and we willgive 
them three hours. The respondents will then have four houi-s, and 
those in the affirmative an hour in reply, making eight hours in all. 

I want to say further that the committee does not care whether 
one man takes the four hours or whether there are 20 men to occupy 
that time. I also desire to say, on behalf of the committee, that any 
interruptions that niay occur during the argument of any person who 
is addressing the committee will count on the time that is assigned to 
him, and therefore if he does not wish to be interrupted he must say 
so at the time a question may be asked him, otherwise it will hie 
counted against him. 

Representative Cihrrier. I would not want a rule made here, Mr. 
Chairman, that would prevent any member of the committee from 
asking a question. 

The Chairman. The gentlemen will understand, of course, that 
that applies only to outside parties, so that there will be no oppor- 
tunity tor any discussion to arise here betweea interested parties. 
I take it that no gentleman who is addressing this committee would 
object to a question being asked him by any member of the committee. 

Mr. Johnson. That l)eing the case, we should prefer that all 
inquiries should be limited directly to the committee, because our time 
otherwise might be wholly sacrificed by unnecessary questions, and 
if the chairman will make a rule that questions are to be put only 
by members of the committee we will be entirely satisfied. 

The Chairman. Mr. O'Connell, are you satisfied with that ar- 
rangement ? 

Mr. O'Connell. Yes, sir. 


The Chairman. That rule will then be made, to govern the dis- 
cussion during this hearing. 

Mr. Johnson. Several petitions will come into the committee and I 
desire to offer them. I know of several myself, which will come, 
asking a denial of the right of mechanical reproduction. 

The Chairman. If thev are any different rrom those sent to mem- 
bers of the committee I fiave no objection whatever to having them 
in the record: but I do not feel like encumbering the record with 
petitions of which every single Member in both Houses of Congress 
has already received copies. 

Mr. Johnson. These petitions are petitions drawn up by the 
petitioners tliemselves. I know nothing about them or what they 
contain and I have had nothing to do with the drafting of them. 

The Chairman. With the understanding that they are different 
from the ones that have already been presented to the members of the 
comniittee, we have no objection to their being offered in the record. 

The petitioners referred to are, by direction of the committee, in- 
serted in the record, and are as follows: 

To the Senate and House Committee on Patents, 

The I^nibs Club, comprising a membership of over 500 authors, composers, 
actors, playwriglits. and dramatists, resident in every part of the Union, most 
resi)e<'t fully request your favonilile consideration of the Kittredge bill (Senate 
bill 2000), paraj2rrai)h E of which seeks to protect the author and composer 
against the appropriation of his musical worlds in the form of phonograph 
records and perforated rolls without the payment of any royalty. A coudltlon 
which i)ermits the manufacturers of these devices to reap the fruits of the 
intellectual la»>or of the American composers without compensation is unfair 
and most oppressive and should be remedied without any delay. 

A bill to r>eriH»tuate this iniquity has been introduced In the Honse by Mr. 
Currier (H. R. 24.3) and in the Senate by Senator Smoot (Senate bill 2499), 
both of which we urpe you to disapprove. 

Augustus Thomas, Georpe Bnmdhurst, Victor Herbert, Harry Rowe 
Shelley, (Jlen MacDonough, Forrest Robinson, Wm. B. Mack, 
IJnyd Osbourne, Hall McAllister. Morgan Cowan, Rapley 
II<>lnii's, Chester M. Curry, Franli H. Relcher, George Ade, Maclyn 
Arbuikle, Charles W. Lane, George V. Hobart, Wm. Carpenter 
Canii). J. Fred Zimmerman, jr., Victor Harris, Jno. Joy Griffin, 
Melville Stewart, Alfred Kappeler. Byron Ongley, Hugh Ford, 
Charles Klein, G. Prenginl, Walter Hale, Ira Hards, Ernest Haw- 
ford. I^»ui8 F. Gootschalk, Hunter Wykes, Digby Bell, Spencer 
Wright, A. Baldwin Sloane, Vincent Serrano, Charles J. Bell, 
.I<»sse Williams. K. B. Washburne, Jas. F. .1. Archibald, Frank 
Ihnme. CIkis. A. Bigelow, Drurj' I'nderwood. James Harris, 
Fre<leri<k Watson, Denis O'SulIivan, Norman Thorp. Madison 
(V)rey. Denman Maley. A. J. Nutting, Joseph Hart, Percy F. 
Ames. James Clarence Harney, Malcolm Williams, J. A. Stow, 
Ad<llsou C. Mizner, Eniest E. Malcolm. Rufus A. Hughs, Her- 
bert L. Jones, Dustin Farnum, Rennet Mussory, Malcolm 
Bradley. (Jus Weinburg. Thomas McGrath, Clifton Crawford, 
George Nash. Roy Atwell, (ieorge Spink, Gustave Kerker, 
Dewlii C. J*'nniugs, Frwierick Perry, I'Mgar Smith, John E. 
Kollord. Charles I*. Hammond. Arthur Weld, John L. Golden, 
J. N. Ilerter, Herman Perlet. Clay M. Greene, Joseph C. Miron, 
A. J. M. HoI!>nM»k, Julian FMwards, Oswald Yorke, Charles W. 
Butler. Jas. E. Wilson, Fre<ieric Bierhoff, M. D.. Max I>ang 
Meyers, Wm. T. Devan, John Findlay. W. M. Greenman, Edwin 
Forslierg. Alijert Parker, Til ward (J. Rose. Arthur Shaw, Frank 
Craven. Louis Catavarel. Mward B. Kidder, R. E. Graham, 
Then. Bendix, I-Mwln Holland, Julian Mitchell, Rol>ert Hilliard, 
George Stuart Christie. Frank Nelson. William Elliott. I^wls 
IIoo|>er, Donald Brian, Geo. W. Bamum, James Nelll, Wm. H. 
Currie, Willard Curtiss, George Bowie, Paul U. Turner. 


Albany, N. Y., March 2o. 
The following members of the honorable senate of the State of New York do 
hereby respectfully petition the members of the Joint Committee on l*a tents, in 
the House of Representatives at Washington, to reiK>rt favorably the Kittredge- 
Barehfeld bills, which seek to amend the patent laws, in order that the com- 
poser and author may receive some compensation from the work of their brain, 
and further restricting " plionograph and other mechanical musical instrument 
corporations" from using comi)ositions without a fair and equitable comi)ensa- 
tion to both the author and composer. 

P. H. Mc('arren, Thos. F. Grady, Wm. T. 0*Xell, S. P. Hooker, George 
H. Cobb, Francis W. Gates, Eugene M. Trans, D. F. Mullaney, 
Conrad Hasenflug, Sampel J. Ramsperger, F. M. Boyce, A. T. 
Faucher, S. G. Heacock, C. S. Burr, jr., Wm. J. Grattan, 
Horace White, James A. Emerson, Thos. H. Cullen, Otto Q. 
Foelker, James J. Frawley, James Owens, John P. Cohalan, 
Francis M. Carpenter, Sanford W. Smith, J. N. Cordts, A. J. 
Gilchrist, James A. Thompson. 

Mr. Walker. Mr. Chairman, permit me to suggest that these peti- 
tions ought to be filed during the three hours allotted to that side, 
so that the opponents of them may know what is in the petitions. 

The Chairman. I suppose they will be here in due time. 

Mr. Johnson. I have no objection to that suggestion. I suppose 
they will be here within that time. 

The Chairman. We will now hear from Mr. Ligon Johnson. 

CITY, N. Y. 

Mr. Chairman and gentlemen of the committee, in beginning my 
statement to the committee I will first say that in our desire to pre- 
sent the facts involved clearly and fairly to this committee we wish 
to do so not through the medium of attorneys, but directly through 
the individuals involved. There are several interests represented. 
There are, of course, the dramatic authors, and there are the dra- 
matic producers, who are necessarily partners to a great degree with 
the authors, in that the author furnishes the book and the producer 
furnishes the necessary funds to make the production and assumes 
the work and worry incident to that production. Then there are the 
theater owners, who are, in fact, partners with the producers, in that 
their compensation is not by rental of their theaters, but is received 
by sharing in the gross receipts. Then there are the White Rats, the 
vaudeville producers, the Words and Music Club, representing the 
musical authors, and the musical printers. 

In my statement I will confine myself directly to the interests that 
I represent, the dramatic author and the dramatic producer — the 
theater interests. 

I want to state, before proceeding with the argument, that in reply 
to an inquiry made a few days ago as to whether or not any of these 
bills was entirely satisfactory to the dramatic producer, my reply 
was that it was not; but that reply was given, as you recollect, witn 
a reservation as to the mechanical reproducing end of it. I con- 
sidered that no bill fully covered the interests of the dramatic author 
and the dramatic producer. The question was then asked whether the 
Kittredge bill fully covered their interests, and my reply was that 
it did not and that we desired additional protection. 


Wiih reftrrence to the Kiltreilge bill and the Barehfelcl bilL I want 
to f?av that tho^ two bilk, particalarlv the Barehfeld bill, embrace 
a pnnriple which we hielieve to be infinitely more valuable to the 
dramatic prrj^liu.-er and to i\w theater owner and to their vast invest- 
ment-; all over America than everything ehe combined under dis- 

Kf-prp-^-ntative Cibbier. The provision in the Barehfeld bill does 
not ajSply to the production of the dramatic author. It is confined to 
mii*;ical comporiitions. 

ilr. Joiixsox. In the Barehfeld bill there is a provision covering 
the dramatic author. The Kittredge bill makes special provision that 
there shall be no right of reproduction by mechanical means of a 
musical composition. 

Representative CrRRiER. It does not refer to dramatic compositions 
at all. 

Mr. JoHxsox. In the beginning, I want to call your attention to 
the character of proj^erty involved. We have in America in excess 
of S-200.000.000 directly invested in theaters. The very character of a 
theater prevents it from being used for any other purpose. A theater 
can not Ije converted into a store: it can not be converted into a ware- 
house, and it can not be converted into an office building, without 
being practir^ally razed to the ground. 

Any prrxedure or any state of affairs or conditions that will result 
in the noniise of the>e theaters or amusement enterprises simply 
means, in far-t, the forfeiture of that amount of proi)erty throughout 
the rx>iintry. 

There i> not a city or a town of any importance in the United 
States which has not a theater. There are more than 100,000 people 
directly dej)endent on these enterprises for their means of livelihood. 

1 <]o not think the conditions iire identical in all forms of repro- 
duction. It is my nndn-tanding that the mechanical reproducer's 
point of view was that he had gone into the open market and pur- 
cha-<Ml sruiH'thing that Avas to l>e heard through the medium or his 
fingt»r>-, if I may use such an expression, and that the natural result 
was this prmluction of sound: that inasmuch as he had purchased it 
and harl taken possc»ssion of it, he had the right to play it, and any- 
thing resulting from its playing did not concern anvone else. 

With the dramatic producer it is an entirely different proposition. 
In th<* first place, there can be no reproduction of a dramatic work 
without fir-t. by unfair and surreptitious means, securing the lines. 
I will nuike a small exception there. There have been one or two dra- 
nuitic plays published: hut I am speaking now of practically all 
dramatic pnxluctions. 

So that licfore there <an be any reproduction or any representation 
through the medium of any machine, he must first secure some person 
to go to the theater and endeavor by one means or another to secure 
the lines of the play. Then the next step is to get a company of actors 
to make uj> a.^ nearly as po>sible along tne lines of those who represent 
the play in the first in>tance. The pictures are then taken and the 
lines dictated into a machine, into a cameraphone or a photophone, 
or w)me other machine. In some instances pictures alone are taken 
and then somel>ody will stand back of the machine and imitate a 
phonograph, speaking the lines. These very acts, in themselveSi 


constitute a violation of the law in its present intent; but unfortu- 
nately there are no means by which we can get at them. When these 
acts are once copied, it means that the photophone and instruments 
may be scatterccl broadcast through the land, and the play will be ab- 
solutely ruined and become a thing without value. 

To illustrate: In many instances we have had to pay our authors 
in excess of $1,000 a week. Suppose that a play was being produced 
in the city of Washington at the National Theater, on which the au- 
thor was receiving a royalty of $1,000 a week. Next door to the 
theater is a moving picture machine, which is set up to reproduce 
this play at 5 cents, instead of the usual price charged at the theater. 
Let me say right here that I am not attacking the moving pictures 
as moving pictures. I am merely complaining about the unauthorized 
production of our plays. 

Now, suppose you provide for a compulsory royalty, and say you 
would give the man 10 per cent. So far as the reproduction on the 
picture machine was concerned he would probably receive from it 
$25 a week, whereas he would lose $1,000 a week next door, and have 
a thing of great value converted into a thing that was utterly worth- 

The Chairman. Do you think that a play that will produce an 
author a royalty of $1,000 a week can be reproduced by one of these 
nickelodeon concerns to the detriment of the author? 

Mr. Johnson. Unquestionably I do. I will be followed by Mr. 
Brady, who will tell you from personal experience how this matter 
is worked. This is not a matter of theory, but is a matter of fact. 
The dramatic producers of America are not a crowd of captious 
schoolboys, who send their representatives here to talk about things 
they do not care about. They are business men, and they are present- 
ing these matters to the committee in the full belief that their prop- 
erty is absolutely jeopardized. 

By way of illustration, Mr. Chairman, I want to hand to this com- 
mittee a clipping from the New York Herald of February 16, 1908, 
to show how these things are done abroad. There they do reproduce 
plays bv the cinematograph and the photophone and the camera- 
phone ; but they hire their dramatists. They ao not undertake to steal 
the fruits of some other man's brain and put it on their machines, 
and thus make a valueless machine a thing of immense value with- 
out the payment of a cent to the man who makes the value. They 
employ their dramatist to write for these machines. I do not be- 
lieve there are two dramatists in America who are not at full liberty 
to write for any machine that comes and makes them a proposition 
to prepare and produce a play for it. This article states that such 
dramatists as Edmond Rostand, Henri Lavedan, and Alfred Capus, 
three of France's leading writers, have been commissioned to compose 
pieces for moving pictures. 

The article says: 

The cl Ileum tograph has taken up so promlueut a position among the popular 
amusements nowadaj's that the impresarii are obtaining scenes from the leading 
Parisian dramatists. M. E<lmond Rostand has been commissioned to write 
three fairy plays, the first of which will be The Sleeping Beauty. M. Henri 
Lavedan is to write a historical piece entitled The Assassination of the Due 
de Guise," and M. Alfred Capus has undertalcen to compose Une Scene Paris- 
ienne, which will portray the financial life of Paris. 


There is no objection in the world to that. It is eminently proper. 

I do not want to class all of these mechanical reproducers in one 
category. I want to say that some of the mechanical reproducers 
are apparently trying to be perfectly fair, and they make no claim 
that a mechanical reproduc^er has the right to surreptitiously get hold 
of a play and reproduce it and thus utterly destroy the property. 
The others remind me very much of the vultures hovering over the 
commercial battle ^'ound, feeding and flowing fat on the efforts 
of others, if you will pardon me the simile. 

They may procure all of the plays they desire for their mechanical 
machines after it has been produced for a certain length of time, 
because then the play is held by the author at a figure where it can 
be procured by any stock companv upon the payment of a reasonable 
royalty ; and under conditions of that kind there is no question but 
that a play might le^timately be secured for reproduction on these 
mechanical reproducing devices. 

A very peculiar situation always develops in the evolution of one 
of these mechanical reproductions. Here is the author, the one per- 
son who offers an element of value to the combination, because a 
picture film and a phonograph film amounts to a gross cost of onlv 
a few cents, so that the only tning of value, the only thing giving life 
to this machine is the book of the play, furnished by the author. 
The author himself, under existing conditions, can not reproduce that 
play for himself on a picture machine. There were at one time a 
number of picture machine companies in America; but to-day there is 
only one, and it is an absolute trust, an absolute monopoly, a single 
monopoly allied against the authors of America. 

I hana you a clipping with reference to its recent formation, and I 
will give you a further illustration. On February 15, 1908, the 
Moving Picture World published the advertisement of the Consoli- 
dated Film Company of New York, headed " We are at it in three 
places,'' and offerin^a: films at specific prices. A moving-picture man 
m the city of Washington wrote to purchase these films at the prices 
advertised and received this reply 

In reply to yours of the 11 tb instant answering ad. In Moving Picture World 
would Kjiy that we are unable to furnish film at a less price than that voted by 
the Film Service Association (of which we are members) at a convention held 
at Buffalo Saturday and Sunday, February 8 and 9. Our ad. was bona flde, 
but untimely, and as our representative voted to uphold the association we must. 
In deference to our obligation, beg to be excused on the fulfillment of the ad., 
and quote you instead a price of $6 per day per reel on contract of less than 
aeven days, and one reel changed three times per week $2.j. At these rates we 
do not believe you will do business with us. but we are sure the action of our 
represt»ntative is for the betterment of the business throughout the country. 

Thanking you for your valued Inquiry and assuring you that a contract uiider 
the above prices would unquestionably in the end produce results for you, as the 
film at this price Is new, we are. 

Very truly, yours. Consolidated Film Company. 

Chas. V. BuBTON, President. 

Representative CrRRiER. If this law should be so amended as to 
prevent the reproduction by any means of an unpublished play, which 
was surreptitiously obtained, it would effect tne purpose you have 
in mind? 

Mr. Johnson. It would largely, Mr. Chairman; but there are some 
plays that have been published, and they would not be covered by 
such a provision, as, for instance, the librettos for the operas. 


The Chairman. They are published for the purpose of vending 
them at a profit, are they not? 

Mr. Johnson. The play is not published for the purpose of repro- 
duction, but is published for the purpose of being read, as you would 
purchase a book to read. The primary rights to the book are pre- 
served under the copyright law and the performing rights of the play 
are reserved in the same mamier. 

Representative Currier. I understood that when you appeared 
here on yesterday you confined your amendment solely to unpublished 

^Ir. Johnson. That was strictly as to the dramatic end of it. I 
then stated that I was making no reference to any provision with rela- 
tion to mechanical reproduction. 

In other words, here is a single trust, with millions of dollars for 
machines, with millions of dollars, if necessary, to pay singers, with 
plenty of money to pay an actor who will surreptitiously produce a 
play of which they steal pictures without letting us know anything 
about it, and they then go and make a mechanical reproduction of 
our play, and wreck our property absolutely. That is what they are 
coming before this committee and claiming they have the right to d^o. 

Kepresentative Currier. Will you be satisfied with such an amend- 
ment as I have suggested? 

Mr. Johnson. As a matter of compromise we might accept less 
than we think we are entitled to, but we think we are entitled to it 

Senator Brandegee. You are representing tlie dramatic authors? 

Mr. Johnson. The dramatic authors and reproducers. We pro- 
duce both dramatic and musical compositions. 

Senator Brandegee. And that is all that you want? 

Mr. Johnson. We simply want a denial of the right to reproduce, 
through the medium of a cameraphone or a photophone, or whatever 
it may be called, our plavs and our operas. 

Senator Brandegee. What, is the name of this machine that you 
say is controlled by the trust? 

Mr. Johnson. Before I answer that let me say I want you to 
understand that we are not fighting the moving pictures. We think 
it is a very fair and proper amusement. The only thing we are fight- 
ing, as a matter of lact, is the pirating of our plays for reproduction 
upon these machines. It is a condition which has only arisen within 
the past few months. The machines have been utilized abroad for 
quite a while; but they have never come into America, and it is only 
within a very recent date that they have sought to reproduce our 
plays. No doubt you gentlemen have all been into a moving picture 
establishment, ana you will remember that the average scene is, for 
instance, a fire scene, where there is a bedroom and a mother and 
a child, and then all of a sudden there is a burst of flame. The fire 
engines come to their rescue. Or there is a scone representing a 
burglary, or a train robbery, or something of that kind. That is all 
they ever attempted to reproduce. They did not attempt to utilize 
the ideas of any dramatic author, so far as I have heard, until a very 
recent date, and as a consequence the dramatic author and producer 
did not consider the character of this bill until this matter was 
brought to their attention by their plays being publicly ex^^lovtsd^ ^s^ 

39207—08 ^12 


these machines. He then instantly felt the loss. That is the reason 
we have not heretofore appeared before your committee. 

In addition to that, the decision of the Supreme Court had not been 
rendered, nor had any intimation been given of the fact that the 
courts would construe the words of the billto mean that where a right 
was not plainly given, after a condition existed which might affect the 
right, the Supreme Court would construe the bill to mean that it was 
a denial of that right 

Just here, Mr. Chairman, I desire to file several newspaper reports 
involving the different machines and different reproductions. 

Senator Brandegee. What people do you represent? 

Mr. Johnson. I represent the dramatic authors, the dramatic pro- 
ducer, and the theater owner ; but principally the dramatic producer. 

Senator Brandegee. Is that what is known as the theater trust ? 

Mr. Johnson. No; I am representing, among other things, the 
theaters of America in which the plays oi the dramatic producers are 

Senator Brandegee. AMiat is the name of that concern? 

Mr. Johnson. There is no concern about it It is simply an associa- 
tion of theaters. 

Senator Brandegee. What is the name of the association? 

Mr. Johnson. There is no absolute association. 

Senator Brandegee. Have they not an organization? 

Mr. Johnson. In the Southern States there is a direct organization 
called the Southern States Theater Owners; but they are in with no 
particular concern. 

Senator Biiandegee. Are they incorporated ? 

Mr. Johnson. Not at all. I want to disabuse your mind about the 
theater trust. The theaters repre^sented here by me embrace every 
form of theater. 

Senator Brandegee. I am trying to get a definite idea of what the 
organization is. 

Air. Johnson. The primary incorporated organization is the Na- 
tional Association of Theater Producing Managers, embracing prac- 
tically every producing manager of popular-price and high-price 
theaters in America. 

Senator Brandegee. Where is it loc4ited? 

Mr. Johnson. It is in New York; and to show you that it is abso- 
lutely separate from any particular interest I want to tell you that 
it enibracx».s Massrs. Klaw & Erlanger; it embraces David Belasco; it 
embraces Schulxjit Bros.; it embraces Mr. William H. Brady, Daniel 
Frohman, and every other prominent producer. 

Senator Brande^jek. Has it any capital stock? 

Mr. Johnson. Not at all. It is merely an association under the 
laws of New York, in the form of a simple association, without stock. 

Senator Brande<jee. Is it a voluntarjr association? 

Mr. Johnson. It is a voluntary association. 

Senator Brandegee. Incorporated under the laws of New York? 

Mr. Johnson. Incorporated under the laws of New York. 

Senator Brandegee. AVhat is the purpose of it? 

Mr. Johnson. The purpose of it is to take care simply of matters 
of this kind, to watch over and protect the interest of the dramatic 
producer throughout tlie country. This is a very good illustration of 


it — where a bill is offered which will result in the utter destruction of 
their property, there will be a uniformity of action in appearing be- 
fore legislative committees and otherwise striving for their mutual 
protection. It does not embrace any syndicate or anything of that 

Senator Brandegee. Does it embrace the people who own the thea 
ters, or the real estate upon which the theaters are located? 

Mr. Johnson. We have been requested by about 400 theater owners 
to represent them in this particular matter, because they are involved 
with us, under this bill. 

Senator Brandegee. Are they members of the association? 

Mr. Johnson. No, sir ; they are not. The association is confined ex- 
clusively to the producers. I do not represent every dramatic author, 
nor do I represent the Dramatists Club in New York. I represent 
certain dramatists who turn over their productions to this association. 

Senator Brandegee. For which of these bodies do you speak? 
These different interests have their own«separate representative here. 

Mr. Johnson. No, sir ; I am here as representing them all, because 
their interests are directly one dependent upon the other. 

Representative Currier. You speak of passing a bill which takes 
away from them the rights they have now. What bill so takes away 
from them any rights they have ftow ? 

Mr. Johnson. The situation is just thi^ I believe it is clearly 
the intent under the existing bill to protect the surreptitious taking 
of a play and producing it 

Representative Currier. Do you say the purpose is to do that^ 

Mr. Johnson. I should have said the effect of the bill, not the pur- 
pose of it. 

Representative Currier. Is there anything in the bill which per- 
mits them to do that, or which changes the situation at all? 

Mr. Johnson. No; this condition nas arisen since the last bill was 
passed, and if no remedj is now provided by the bill, the presumption 
is that we are to be denied fhat right. 

Representative Currier. Suppose that both of the committees in 
their reports, which the Supreme Court would have before them as 
well as the bill, should state that this matter came in so late that the 
other side was not represented and that the development of this sub- 
ject had not gone far enough to make it absolutely certain that their 
interests were imperiled, and should suggest that the subject go over 
to the next session, it would remove your objection that the court 
might assume we intended to sanction it? 

Mr. Johnson. No ; the situation is simply this : These people will 
contend that the bill is to protect their piracy, and under existing cir- 
cumstances there is no machinery provided by which we may obtain 
any relief. 

Representative Currier. But your statement was that we were pass- 
in^a bill which would take away rights. 

The Chairman. As a matter of fact, are you not here arguing for 
additional rights? 

Mr. Johnson. I am unquestionably here asking that we be given 
relief from this condition of affairs. 

The Chairman. Your time has expired. We will hear Mr. Brady. 



CITY, N. Y. 

Mr. Brady. Mr. Chairman, I want to answer a question put to the 
prior speaker by one of the gentlemen of the committee. 1 desire to 
say that he represents the National Association of Producing Man- 
agers, which is an association composed of nearly every man in every 
class of producing for the theaters. This association is largely formed 
of men who promice for the theater, men who take the original plays 
and produce them, and the association was formed for mutual pro- 
tection against any abuses that might arise. 

Senator Brandegee. What do you mean by taking an original play 
and producing it ? 

Mr. Brady. The producer buys from an author a play, the raw 
manuscript, and he buys the scenery, and gets the actors, and guarr 

Senator Brandegee. What you mean is that he puts it on the 

Mr. Brady. No ; I am going to tell you what I mean. He is f oroed 
to buy pictorial printing, sometimes to the extent of $30,000, $40,000, 
or $50,000. To secure that printing of lithographs it is necessary for 
him to guarantee the printing hous« that he will use a certain amount 
of it. He employs actors, paints scenery, engages stage managers, 
and, in many instances, is torced to rent a New York theater and 
run that play at a money loss in order to give it what is popularly 
known as a New York reputation. 

In twenty years I have probably produced 75 to 100 plays by 
American authors. A good play, one that is alive, one that makes a 
great deal of money, comes to a producing manager probably once 
in a lifetime. I employ about 250 to 350 actors and actresses of the 
(lrani«itic kind. I am a dramatic producer. Their salaries range 
from $350 a week down to $25 a week. I call your attention to plays 
of the character of the Old Homestead, Ben Hur, Way Down East, 
and Tlie l^ion and the Mouse. Those are plays that have had a long 
life. In my play allied Way Down East, it was necessary to run 
for seven months in New York City at a loss before it gained the 
univei-sal public attention. It has lived for ten or fifteen years. That 
play is now IxMiig produced throughout the United Stated by the aid 
of moving pictures. They secured my play for the small sum of $5 
from a man named Byers in Chicago and it is being produced by a 
member of this trust that Mr. Johnson just spoke about. They pro- 
pose to go on further "with it, bv the aid of a phonographic attach- 
ment, and produce all the popular plays that are owned by private 
peivons throuirhout the United States. 

My play. Way Down East, is now lx»ing printed on films at the 
rate of from 100 to 200 copies a week by a company which is a mem- 
ber of this tni.-t in Chicago, and yesterday one of my companies, 
compos(»d of 3.*) jKHiple. men and women, was forced off the road and 
sent back to New York, lliey never (»an i)lay again, because in almost 
every one-night stand in this country A\ay Down East is being pre- 
sente<l on every stnH»t corner, presented from a stolen manuscript by 
a man who went into one of pur theaters and took down a copy of 
our plav and sold it to this disreputable picture firm, who is now 
destroying my proiXTty. 


Bepresentative Currier. That play has never been published. 

Mr. Brady. Never. I am going now to tell you some facts and I 
am here to answer questions. I have been trying for twenty years to 
stop this piracy of plays. There is no law which gives us the right 
to go into the office of Mr. Alexander Byers in Chicago and take 
possession of manuscripts which he has stolen from us. We have 
tried it again and again ; but we can not stop it. 

What does it cost a man to make one of these reproductions. He 
takes a store and puts a $400 front in it, has a sheet in the back part 
of the building, puts in a machine for $100, buys a film for $20 a 
week, deceives the people by stating that he is producing my play, 
and the people pay 5 cents to see it. When my play comes along 
they say : " I have seen that for 5 cents and I don't want to see that 
plHY now. Why should I give a dollar to see that ?"' 

The Chairman. What do you mean by " deceiving the people?" 

Mr. Brady. Sometimes there are three or four companies playing 
this piece on the road. We go into a town and give an order for $50, 
or $75, or $100 worth of lithogi-aphic printing. This man in Chicago 
will write to the different lithographers and bill distributers through- 
out the country and obtain through those men the paper we supply 
for advertising our production. They accumulate that in* Chicago 
and sell it to these picture sharps, and* they put out the actual print- 
ing that we use to advertise our play in every little theater and then 
persuade or deceive the j>eople into the belief that they are presenting 
for 5 cents the real article, for which I am, in fact, paying 5 or 10 
per cent of the gross receipts to the author. 

The Chairman. Simply for my own infonnation, I want to ask 
you a question. In my own home town we have these 5-cent show 
places of which you speak, and I do not believe that people go there 
to see Way Down East and then come out and say, if a theatrical 
companv came along, that they had already seen Way Down East 
played by a company. I want to be absolutely fair with you, and I 
want you to be absolutely fair with this committee. 

Mr. Brady. I will be absolutely fair. 

The Chairman. I do not think that any reasonable man would say, 
or that any citizen of the United States would ever think for one 
minute, that a reproduction as given by these nickelodeon houses is 
a reproduction that would satisiy him of Way Down East or any 
other play* 

Mr. Brady. And I answer you, in all fairness, with facts. We can 
not dispute the facts. The company that has been playing Way 
Down East in the Middle West, where it is surrounded by these pic- 
ture diow places, played the other night to a house of $127, whereas, 
before this, they have never played to less than $700 a night. 

The Chairman. Now, let us come right down to the facts. Is it 
not true that every play going in the West, under the conditions ex- 
isting to-day, is not playing to the houses that they did play to a year 
or two years or three years ago? 

Mr. Brady. No, sir; it is not so, because we have another play in 
the same territory, called " The Man of the Hour," which they have 
not yet had time to steal, and that is playing to the capacity of the 

The Chairman. But one is a play that has been before the public 
for ten years, and the other is a new play. 


Mr. Brady. But this play I am referring to has never declined at 
all, until this picture business came up. 

The Chairman. I do not want to take any more of your time, be- 
cause it is nearly up ; so I will not interrupt you again. 

Mr. Brady. In answer to my promise to give you the facts, I sub- 
mit to you the advertisement of one of the gentlemen in the trust 

Representative Currier. I think we have all seen that. 

Mr. Brady. Here is an advertisement of a 5-cent Merry Widow 
play ; and I can produce some advertiseirients of my own play. 

The Chairman. I suggest that you incorporate those in the record* 

Representative Legare. Are those advertisements copyrighted? 

Mr. Brady. In some cases. The Strowbridge Company of Cincin- 
nati, ia some cases, copyright their advertisements. 

Representative Legare. How can we stop this, if you do not copy- 
right them? 

Mr. Brady. If they can steal our printing, they can steal our 
wat<;h. What we want to do is to stop the reproduction of our origi- 
nal plays, to protect our thought, to protect our work from repro- 
duction in a picture machine and sendmg it throughout the country, 
thus depriving us of the value of our work. 

Representative Leake. In other words, you do not wish to have a 
picture concern have the right to reproduce your play any more than 
a set of actors would have the right to act your play in another 

Mr. Brady. That is our contention, in a word. I listended a 
moment ago to a suggestion by Mr. Currier that this thing should 
be postponed until the next session of Congress. Believe me, our case 
is aesperate. You have no idea how desperate it is. If this thing is 
not stopped it means ruin for us and for the men who write for the 
stage. 1 could quote to you, if I were allowed to do so, a hundred 
cases where it would mean great loss and injury. 

We do not object to these picture shops, as such. I know three or 
four picture conc(»rns who do not use our property. It is a good thing 
to show the people pictures of Switzerland and let them go in ior 5 
cents ^vhen they can not afford a dollar to see a play. They are grow- 
ing in development and are just beginning; but do not let them steal 
our property. If they want plays let them do the same as the French 
manufacturer does. lie hires his authors to write for his machines, 
and he pays them. If they want to use our property let them pay us 
for it. 

Representative Currier. Witliout expressing any opinion, and ask- 
ing simply for information, I want to know whether you would be 
satisfied with a provision in this law which would apply simply to 
unpublished plays that were surreptitiously obtained. 

Mr. Brady. Absolutely — ^the protection of what we come here to 
Washington and copyright. Tnat is all we ask for. You have a 
copyright law and after we have deposited our books here you guar- 
antee us protection, and then do not protect us. 

Representative Pratt. It is the adult audience which supports the 
theater, is it not? 

Mr. Brady. No^ir; the women support the theater. 

Representative jPratt. The women are not the principal patrons of 
thi^ nickel-in-the-slot places! 


Mr. Brady. But I am not protesting against the nickel-in-the-slot 

Representative Currier. He means the nickel theaters. 

Mr. Brady. The nickel theater is largely supported by women and 
children, who are the patrons of the balcony and the gallery. Mr. 
Frohman will probably tell you that since the coming of these 
picture shops the gallery and balcony receipts have fallen off to 
almost. nothing; but we do not object to the legitimate competition 
from these places. 

Representative Currier. Such plays as you speak of, the unpub- 
lishea plays, are never multiplied, and it is impossible for you to re- 
ceive any royalty except from the production of the play. 

Mr. Brady. Some men, like Bernard Shaw, publish their plays and 
get a royalty. 

Representative Currier. Do you not think there should be a differ- 
ence between the published and the unpublished play ? 

Mr. Brady. I aosolutely do. We will not publish our line, and if 
you will grant us what we want w^e will grant to you, or to anybody 
who is fool enough to publish his plays, the right to do it, and let 
him protect himself. 

The Chairman. In other words, if he is protected once that is 

Mr. Brady. It is enough. Now, I wish to call your very particular 
attention to France, a place where the moving-picture industry em- 
ploys the best and most expensive authors in the land to write for 
their picture machines. They never use any of the protected plays in 
France without paying the author a royalty for the use of them, if 
he will allow them to use the play. 

I want also to call your attention to another thing. There are 
suitable theaters going up everywhere. You know that there are 
magnificent temples being built for theatrical uses, which represent 
the investment of a lot of money. 

I also want to call your attention to the fact that, under the in- 
creased cost of labor, of materials, and in the salary of actors, etc., 
the expense of running an ordinary company now averages $2,500 a 
week and some of them run to $5,000 or $6,000. Of that sum prob- 
abljr one-half goes to the actors and the rest go to the railroad com- 
panies, to the newspapers, to the stage hands, to the bill posters, and 
to all sorts of people who are benefited by our trade. 

The Chairman. Your time was extended five minutes, but your 
fifteen minutes are now up. Before proceeding further I want to 
say that I do not think it will influence the committee in any way, 
shape, or form to have any demonstration in the way of applause. 
What we want is a statement of the facts. So it will be well to let 
the man who is speaking say what he wishes to say and make what 
impression he malces upon the committee by his words, and not by 
any attempted demonstration from the outside. 

We will now hear Mr. Parker. 



CITY, N. Y. 

Mr. Parkkr. Mr. Cluurman and gentlemen of the committee, I am 
a nuMuhor of the National Asstx'iation of Producing Managers. I 
control and exploit only one play, bv the same author as Way Down 

Repros(»ntative Leake. Wliat is the name of that play? 

Mr. Pakkek. '' Under Southern Skies." Mr. Johnson has stated 
that there ai\^ 1C)0,(KX) people directly employed in amusements. 
There are a groat many more than that. In every theater in the 
United States, in the smallest one-night stands, there are at least 
20 eini)loyees, and they art* all dep»endent for their livelihood upon 
tlio success of the traveling companies. 

If in this bill you give protection to the author you protect the 
producing uuinagiT, as their interests are identical. 

In regard to ivproduction by musical contrivances: If a play is 

i)roduc(Hl by a musical contrivance the public gets to see it and they 
earn tlu» siory of the play. When they have learned the story of 
tlje i)lay, they usually lose their desire to see the original production. 
It is th\» story of the play that brings them to the theater. As long 
as the play is interpreted by an average company of actors they care 
not who those actors ai^e, outside of great personalities | and when 
you pive tluMu the story of the play Wiind a group of pictures they 
los<^ Intercast in going to sih* the play itself. 

The ('iiAiKMAN. 1 oil do not think that is generally the case, do 
you ? 

Mr. Pahkeh. I think that is absolutely the case. 

The ('iiAiHMAN. Is that what you go to the theater for? 

Mr. Pahkeu. Yes; my interest is aroused to s(H5 a play, because I 
want to stv and hear the story of that play. That is a nuidamental 

TIh» (^iiAiKMAN. Then the company itself, whether it l^e poor or 
whclhcr it 1h» good, cuts no figure with you at all. What you want 
to know i*^ th(» story of the play? 

Mr. PAHKEn. I refer to anynlay that is intelligently interpreted, 
no ninttiT what is the name of tlie iictor, unless he is one with a great 
personality. No one ever heard the public say, Are you going to the 
theater to-night to see Hamlet? but they would say. Are you going 
to th(» theater to-niirht to see Mr. Booth? But thev do not do that 
when they speak of plays like The Lion and the Alouse. 

Hi'j>r<»s<*ntative Le<;are. Are not most of your plays taken from 
poMular books that have In^en w^ll read and circulated? 

iVlr. Parkek. No, sir; they are not. 

Kepresentative Le(;are. It is oftentimes true that plays are taken 
from popular books. 

Mr. Parker. Not 1 per cent of the plays produced are dramatiza- 
tions, and not 1 per cent of the dramatizations are a success, so that 
not one one-thousandth per cent of the successful productions are 
dramatizations. They are the restilt of personal effort^ produced and 
managed by those w^ho must be skilled m the technique of the stage, 
in order to produce a successful play. 


Representative Leoare. The men who have these moving picture 
concerns disseminate your play all over the country, so that it becomes 
well known, and then when your play does get*^ to a town,, it goes 
jflat. Is that the idea? 

Mr. Parker. The picture machine will give the story of the play 
to the public, so that they will know all am)ut it, and then they will 
not want to go to see it. 

Bepresentative Leoare. They know whether the hero is going to 
be killed or not, before your play gets there ? 

Mr. Parker. They know all about it. They know whether it ends 
happily or not. One thing that makes a successful play is the sus- 
pense in which it holds the audience, while they are listening to it. 

Representative Leoare. You can not have any climax, if they are 
all known beforehand. 

Mr. Parker. There will be no climax. 

So far as I know, Under Southern Skies is controlled only by me. 
I have the exclusive contract, and so far as I know^ there are no films 
made of the play yet. I know that there are some surreptitious ver- 
sions of the play. There was a company playing it in a town down 
South ; but 1 could not find where they were. I got hold of a bill 
that was printed in one town, some two months after they were there, 
and I have spent a great deal of money trying to locate that piratical 

Representative Currier. I suppose you know that if the gentlemen 
who have an interest here persist m making the maximum oi demand, 
and refuse to yi6ld in any way, that there is absolutely no possibility 
of this bill passing at this session or the next session of Congress. 

Mr. Parker. I believe we should give the author protection. I 
think that is the idea of a copyright law and that the idea which you 
gentlemen have is to protect the author's work for the author. 

I have nothing more to say except that unless this bill is enacted, 
giving the author protection, it will entail more loss than you can 
understand. I am only a small manager and I exploit my play in 
popular-priced theaters where the best seats and boxes are only $1, 
and yet I have on the shelf now, for next season, over $20,000 worth 
' of printing, and, as in the case of Way Down East, my property 
would be spoiled, and would be an absolute loss to me, if my play 
should be stolen and produced on these machines. 

I would like to just have your attention for a moment^ so that I 
can tell you what the success of even a popular-price play means. 
Under Southern Skies is 7 years old and 

The Chairman. Mr. Parker, your time has expired, according to 
the schedule. We will now hear from Harry P. Mawson, who has 
been allotted two minutes. 


Mr. Chairman and gentlemen of the committee, all that I desire to 
do is to indorse, word for word, everything that Mr. Brady has stated 
to this committee. 



CITY, N. Y. 

Mr. Frohman. Mr. Chairman and gentlemen, there is no need for 
me to take up the time of the committee. I merely want to indorse 
what Mr. Johnson has stated and what Mr. Brady has given to the 
committee in the way of facts. I will add only one point. We know 
that the drama is supposed to be an educational influence in this 
country and that it is a good thing to popularize good plays for the 
benefit of the public. There is no diflSculty in the way of the public 
who patronize the nickelodeons seeing these new plays if the same 
system is adopted that they now have in vogue with the cheaper 
grade of stock companies. After a manager has produced his play in 
New York and has produced it throughout the country he can dispose 
of the play at a reasonable royalty, and he can make an arrangement 
with these 5-cent theaters so that the plays can be presented there in 
such a way that there will be no element of loss or destruction of 
value for that purpose. 

Representative Legare. Have you any evidence showing the losses 
sustained by any one of these companies by the reproduction of its 
plays in the 5-cent theaters ? 

Mr. Frohman. This system has come up so recently that I have 
not been able to ascertain about that. I know that my receipts in 
New York have suffered a great deal in the galleries from the pres- 
ence of these nickel theaters, but we do not object to that legitimate, 

Representative Currier. It is a threat, rather than an actual 

ifr. Frohman. Yes. 

Representative Leake. What, in your judgment, would be the 
effect upon the attendance at a theater if, for example, there was 
printed on the front page of the pro^amme a synopsis of a play like 
"Way Down East" such a synopsis as they have for the opera? 
Would that have a deterrent etfect upon the attendance? 

Mr. Frohman. No; not a print of the synopsis, because the synopsis 
of a play provokes curiosity and the performance of a play almys . 
curiosity. The value of such a play as " The Lion and the Mouse " 
and " The Man of the Hour " is in the character of its story. They 
do not go to see those plavs because a particular company plays them, 
althoudi they must be played adequately to give life to the produc- 
tion of the author: but it is the story that is of interest to the public. 
If that story is published by means of these pictures the curiosity of 
the public as to the story is entirely allayed. 


Mr. Klein. Mr. Chairman and gentlemen of the committee, I wish 
to indorse substantially every word that has been spoken by the 
gentleman who preceded me, and to say that unless the author re- 
ceives adeouate protection from the copyright law the stimulus, 
energy, ana moral courage that is necessary for him to have in order 
to sit down for a year, or two years in some cases, and write a play, 
will be lost. He must feel, when he has completed his work, which 
has taken two yeai*s of his life, that the work will belong to him. 


Furthermore, the right and privilege of making a contract with a 
manager would be lost if people can surreptitiously take his work. 

Representative Leake. How many unsuccessful plays did you write 
before you got a good success and how much of your life did you 
spend at this work oefore you made a success ? 

Mr. Ko:iN. I spent nine or ten vears in writing plays that were 
ordinarily successful ; but those plays were never taken by these 
people. The moment, however, I struck a success it was played, I 
think, in 30 States at one time, and the little money I got out of it I 
couldn't afford to spend in legal proceedings. 

Representative Leake. What successful plays have you written? 

Mr. Klein. My modes^ prevents me irom telling. 

Representative Leake. 1 want to have that in the record. 

Mr. Klein. I have written El Capitan, The Honorable John 
Grigsby, The District Attorney, The Auctioneer, The Music Master, 
The lion and the Mouse, and others that I thought were more or less 
successful; but the managers did not. 

Representative Currier. Did the lo&s which you sav you sustained 
arise out of the fact that your plays were surreptitfously obtained, 
and produced by traveling dramatic companies? 

Mr. Ki^iN. Yes; they were travelers. 

Representative Currier. It was not because of the moving-picture 
business ? 

Mr. Klein. The moving-picture business was not in existence. It 
was not thought of then. 

The Chairman. Your losses were caused by the theft of your plays 
by traveling companies? 

Mr. Klein. Yes. 

Representative Leake. He can not say that, because he does not 
know of any loss that he can prove from moving pictures ; but there 
may have been a loss. 

I'he Chairman. He can state whether he thinks that is the case. 

Mr. Klein. I positively think that The Music Master, which is 
playing now at the Stuyvesant Theater in New York under the man- 
agement of David Belasco, has lost money in its gallery because of a 
certain Fourteenth-street nickelodeon. I have not seen the perform- 
ance myself, and I do not want to see it| but I understand that the 
gallery business has fallen off. Whether it is due to that or not, I do 
not know. You can draw the inference yourself. 

The Chairman. If I were you I would go to that Fourteenth-street 
nickelodeon and see just what is presented there, so as to find out 
whether you really believe that the nickelodeon production of The 
Music Master is a representation of such a character as to keep the 
American public from attending a dramatic production. 

Mr. Klein. Mr. Chairman, I do not think the class of people who 
go to the nickelodeon theater are capable of differentiatiiig between a 
nickelodeon performance and a first-class performance. They simply 
see one and do not want to see the other. They are not intellectual 

Senator Brandeoee. Do you think that people who pay five cents 
to see The Music Master in a nickelodeon would pay ^2 or $2.50 to 
see it in a theater? 

Mr. Klein. Possibly they would not pay $2, but the>' would pay 
25 cents to go up in the gallery, and it is a dramatic axiom that the 


gallery is the real profit of a theater. Now, if the gallery is taken 
away from the manager, he has no profit. 

Representative Law. Why is this Fourteenth-street nickelodeon 
producing The Music Master? 

Mr. Klein. I am unable to understand why. 

Repres<Mitative Law. The production there would take a consider- 
able number of people out of the half-dollar gallery, would it not? 

Mr. Klein. Yes, sir. 

Representative Law. But such competition as that you would not 
object to? 

Mr. Klein. I do object to it 

Representative Law. But if they were not producing the same play, 
and it was only ordinary competition, you would not object? 

Mr. Klein. I do not "quite understand you. 

Representative Leake. ^Aliat he means is that all you are claiming 
is that you want the plays you write copyrighted and protected. 

Mr. KxEiN. Yes; 1 want the protection. I think, of course, that 
the moving pictures are very interesting. 

The Chairman. In other words, you and the other authors do not 
desire competiticm at all. You want to take in the gallery and every 
other part of it — so you want it all? 

Representative Leake. He did not intimate that. 

Mr. Klein. I do not want my plays stolen by parties under the 
guise of law. 

Representative Currier. Would you not have an adequate remedy 
in the New York coui-ts against tnat Fourteenth street place, and 
could you not dose it at once by injunction, by proceedings in court? 

Mr. Klein. I doubt it very much, because to copyright them we 
have to publish our plays. 

Representative Currier. A public performance is going on there. 
Do you not think you could get adequate relief to-day in the New 
York courts? 

Mr. Klein. I question it. 

The Chairman. Have you ever taken up that question with any 
attorney ? 

Representative Leake. The difference there is that one is the case 
of a performance, whereas the other is a mere representati<m of a 

The Chairman. Mr. Herl)ert, we will hear you now, and you have 
been allotted ten minutes. 


Mr. IIerhert. Mr. Chairman and gentlemen, I represent the 
Authors' and ComposiM>' Copyright League of America, and I am 
also here as the representative of the American Federation of Musi- 
cians, renresenting 00,000 musicians. I have been asked by them to 
read to this committee the following letter: 

Wabhinoton, D. C, march 28, 1908. 
Mr. ViCTOB IlKRHEBT, Wo^hinittutu D. (7. 

I>EAB Sir: Wo bog to advise yon tbat you are hereby appointed and anthor- 
ized to rei)reHoiit the Anioricaii Federation of Musicians in all matters pertain- 
ing to the protection of the products of Ajuerlcan composers. 


The American Federation of Muaicians, which rei)resent well-nigh all the 
instrumental performers of the United States, recognizes that unless the Ameri- 
can .composer is suitably protected against exploitation of his compositions the 
opiK>rtuiilty is destroyed that American talont will eventually create an Ameri- 
can school of music, so that for this agent of culture we will not forever remain 
dependent upon Europe. 

We musicians feel that an injustice is perpetrated ui)on American composers 
who, after popularizing their works, must stand by defenseless and see others 
reap the benefits. In our observations we find that phonograph companies, 
talking machines, etc., do not popularize works or comi»ositions, but on the con- 
trary do only seize upon and utilize such as have alrea<l.v become i)opular, and 
therefore they reap the benefits of the efforts of others. 

The composer after creating a work must associate himself with a publisher. 
He, together with his publisher, often si)en(ls thousands of dollars to bring his 
work before the public. This is done with the assistance of the musicians of 
the country; it is copied, and the comiwser's thoughts are reproiluced by phono- 
graphs and talking machines. This is eminently unfair. 

Hoping that the American composers will be entirely successful In their just 
demands to have the results of their work protected and that henceforth they 
will also be benefichiries of the broad American doctrine of a square deal for 
all, we remain, 

Very truly, yours, Joe N. Weeeb. 

President A. /•'. of Musicians. 
Owen Milleb, 


Representing 60,000 musicians. 

The committee has been told by the opponents of this bill that they 
advertise our works, and make fhein popular. I would like to read 
them a few selections from that advertising. Ileie is some advertis- 
ing by the Columbia Phonograph Company, Avliich is sent to their 
dealers. It reads: 

A Square Deal fob the Dealeb. 

here's where we pluo the one big leak — no more monthly lists to keep 

you stewing and guessing and OVERSTOCKINCI— Sl'PPLKMKXTS WILL BE ISSUED 

There's only one tiling tliat ails the talking machine husiness this minute^ 
record indigestion. 

Every dealer knows what it is to have a new lot of 50 rK'ords shoved down 
his throat once every month repirdloss of the stock he may have in his racks. 

And every dealer knows it has been getting worse. A while ago you could 
count on selling records right through the month, but of late the tendency has 
been tor the record buyers to buy while the list is less than two weeks old — 
and stay away the other two weeks. 

Where would this end if some one didn't get out the ginger bottle? 

If talking machines and records hadn't come to be almost more of an every- 
day necessity than a luxury, and if the talking machine business hadn't biHMi 
solid and sound, this overstuffing once a month would have made an operation 
necessary long ago. 

Here you are adding to your dead stock every month — and still unable to 
carry every last one of the newly announced records that somebody may come 
In and call for. 

We can tell you where it is going to end, as far as we are concerned — it's 
going to end right here and now. 

As manufacturers, we could keep this monthly list business going indefinitely; 
and likewise we are probably best able and most willing to assume all the re- 
sponsibility of putting an end to it. We know that, just as we have been the 
pioneers in this business for twenty years, it is up to us to be the pioneers now. 
The l)urden of 40 or .50 new reconis every month, with the consequent load of 
overstocking and deadstocking, is a burden that the dealer knows is getting 
more unbearable everj- month, and we proi>ose to take that burden off our 
dealers' shoulders at once, whether anybody else in the trade follows us or not. 

The dealers' prosperity is ours — of course — ^and the dealer would not prosper 
mach longer if this one big hole In his cash drawer couldin't V^ ^q^v««^ '^^ 


know we are right. We believe the jobbers and dealers know It, too. So here's 
what we are golnp to do: (1) Cut out the monthly lists; (2) issue a con- 
densed list every three months — March 1, June 1, September 1, and December 1; 
(3) Issue complete catalogues twice a year; (4) announce new records of the 
big hits as fast as they npiHjar — and you can place them on sale as soon as yon 
like, without looking at the date on the calendar. 

The records in the quarterly list will include those big hits and also whatever 
new records have been made during the quarter ; but every record in that quar- 
terly list will be a sure seller. No record will ever get by our record committee 
unless that one point is settled for certain. 

This way youMl get the attention of record buyers every time a record is an- 
nounced—and what's more you will have the records ready for him. 

After this has happened once or twice and the record buyer realizes that there 
is no reason why he should do all his record buying around the 26th of the 
month, you will have him coming into the store every time he wants something 

And " something new " only means something new to him. You have a regu- 
lar list of hundreds of records which are new to him and which are 100 per 
cent l)etter in every way than many of those in the monthly lists — and it's 
going to be the easiest thing in the world to sell him out of your regular list— 
and satisfy him better than you ever did before. 

You will have him coming in whenever he has money to spend — ^that will be 
the outcome of it. 

And that's the natural, legitimate, and profitable way to sell records. 

If you should find yourself tempted to express your opinion, or if any qnee- 
tlons occur to you, your letter will be welcome at this ofllce. 


Tribune Building, New York, 
Columbia disc and cylinder records fit any talking machine and make It 

sound almost as good as the Ck)lunibia graphophone. 

I have here also a pamphlet issued by the Edison Phonograph 
Com])any dated March, 1898. It is a very hard pamphlet to get, be- 
cause they withdrew it after they saw the effect of it. It is from the 
department under the heading, "Questions and Answers" in The 

New Phono<!:nun. and is as follows: 

N. W. K., St. .T(»s('pli, Mich.— Please tell If anyone having a song composed 
could have it rcnordod on a record after it has been published in. sheet music 
form? Do you publish your own sheet music or must one send it elsewhere 
first? — (We do not print or publish sheet music of any kind and can give you 
no information al)out publishing a song. It is very doubtful if we would be 
able to use your song even if published. For the most part we make records 
only of such elections ns are widely known or popular because of the efforts 
of tlioir publishers, or because they are sung upon the stage. Manufacturing 
phonograph rix^ords for the public is necessarily a selfish proposition, and in 
seUH'ting subje<'ts for records we aim to get those for w^hlch there will prob- 
ably be a large sale. Your song might be equal to or better than any of the so- 
callwl i)oi>ular songs or ballads, and still not be available for record making.) 

Here is anotlier one* from tlie Columbia Phonograph Company ad- 
vertising " Star retords " in The Talking Machine World under date 
of January ir>, HK)S: 

Star rwords jire the live line of disk records. 

Not a sohH'tlon is llslfsl until the demand for It is assured. 

This means no "dt^id <»ies," a constantly moving 8t<K?k, a quick turnover- 
more business with h*ss rapital in the Star line than with any other. 

Bulletins of new sfltH-tlons are issued monthly — popular things while they 
are iwpular. 

Star records are unexcelled in pure briUiancy of tone, in fteedom from scratch, 
and In durability. 

Made In 10-inch and 12-inch sizes. 

Are you a Star dealer? You ought to be. 


Mr. Chairman, we are in absolutely the same position as the dram- 
atists, and we can only indorse absolutely all that Mr. Brady has 
said and all that Mr. Johnson has said. These people are taking our 
works and appropriating them without compensation. 

The Chairman. Mr. Herbert, would you be satisfied, as a musical 
composer, if there was a provision made for paying you a royalty 
by the manufacturers of mechanical reproducing devices? 

Eepresentative Currier. A percentage royalty, which would work 

The Chairman. Together with a further provision that any manu- 
facturer of any mechanical reproducing device, upon payment to you 
of a stipulated royalty could make a record or disk or cylinder of any 
musical composition that you might compose? 

Representative Leake. He would want to Iniow what would be the 
stipulated royalty. 

Kepresentative Currier. That is a matter of detail. 

Mr. Herbert. In the first place, all of my works do not command 
the same price, and I do not think it would be fair to me to have the 
same price for all the work I have done. 

Representative Currier. It would be a percentage royalty, so that 
if a gi'eat number of them were sold you would get a royalty in pro- 
portion to the sale. 

The Chairman. If a record sold for $5, there might be a per- 
centage of that paid as royalty, and if it sold for 25 cents, there 
might be a percentage of it paid ? 

Mr. Herbert. But I think I ou^ht to have the supervision over 
the thing, with reference to the artistic side of it. That is the very 
thing I have been speaking about. As a matter of fact, they simply 
do not perform on their machines at all what they claim it to be. I 
deny that the compositions they put on their machines* are my works. 

iJepresentative- jLegare. If they are not your works, how can we 
force them to pay you a royalty ? • 

Mr. Herbert. Because they would be my works if I had the super- 
vision of the manufacturing of them, which is denied me to-day. 

Kepresentative Currier. Mr. F. M. Prescott, in answer to a state- 
ment which I made that I understood the composers were opposed to 
a compulsory royalty, says, in a pamphlet which every Member 
of Congress has received, that he does not agree with me at all that 
the composers are opposed to a royalty or compulsory license, and 

I do know that such well-known and prominent composers as Philip Sousa 
and Victor Herbert denounce in the strongest terms your attitude on the 
copyright bill, and favor in the warmest manner a copyright law which will 
provide for everyone using their compositions, no matter whether transcribed 
In the well-known form of sheet music or by mechanical music rolls or phono- 
graphic rolls or disks or any other art or manner to be devised in the future. 

Is Mr. Prescott correct in that statement? 

Mr. Herbert. I think I have met Mr. Prescott but once in my life. 
That is his statement, and I am not responsible for what other people 

Kepresentative Ci rrier. I assume that he did not make that state- 
ment without talking with you about it. Did you say that to Mr. 
Prescott ( 

Mr. Herbert. I never heard that before in my life. 


Eepresentative Currier. Did you ever make a statement that was 
anything like that to Mr. Prescott? 

Mr. Herbert. I could never have made a statement in so few words 
about so important a question. 

Representative Currier. Did you ever make a statement to him 
in which you said you were in favor of a compulsory license ? 

Mr. Herbert. I have been told by eminent lawyers that it is im- 
possible, because it would be unconstitutional. 

Eepresentative Currier. Then this is not your position! 

Mr. Herbert. Of course not; how could it be? 

Eepresentative Currier. Is that Mr. Sousa's position? 

Mr. Herbert. I do not know. 

The Chairman. You remember my asking him at the last hearings 
whether he was in favor of a royalty or not ? 

Mr. Herbert. Yes ; it was mentioned. 

The Chairman. This is not a new question, because it has been 
considered here for nearly two years. Mr. Sousa then said equivocally, 
however, that he was in favor of it, and afterwards said that he was 
not in favor of a royalty. 

Eepresentative Currier. We would like your position well defined 
about this matter. 

Mr. Herbert. I simply want the manufacturer of mechanical in- 
struments to be put in the same position, individually, toward me 
as the publisher is to-day. 

Eepresentative Currier. Then we are to understand from you that 
it is not compensation for your composition that you are asking 
for, but the exclusive control of your compositions? 

Mr. Herbert. The artistic control. 

Eepresentative Currier. And the exclusive control. It is not 
com[)onsation that you are looking for, because if that is what you 
are looking for, you could ^t that under the i)ercentage royalty. 

Mr. Herbert. I am looking for that, too. 

Ee]>res(»ntative Ci rrier. You get absolute compensation under 
that provision. 

Eepresentative Leake. No; he does not. He only gets a compen- 
sation which some individual indicates is a fair com[)ensation. He 
wants the right to deal with the phonograph company himself, and 
determine what that compensation shall lx\ 

Eepresentative. CuRRiEB. Under the suggested provision of a per- 
centage compensation as royalty, he gets a w)inpensation which works 

Eepresentative Leake. Is it not true that in some cases he ought 
to have a hirger c<)mj)ensation than in others? 

Eepresentative Currier. And he gets it. If a phonograph com- 
pany was to sell its composition for less than it was worth, there 
would be an extraordinary demand for it and the percentage royalty 
would give him his comi>ensation. 

Eepresentative Leake. Yes; but they can take his lx»st composi- 
tion and sell it for the cheapest price, in order to more widely dis- 
seminate it, and he might object to it. 

Eepresentative Currier. But he would get his compensation fixed 
by Congress, not by an individual. 

Eepresentative Leake. I do not l)elieve in Congress fixing rates at 
which individuals should contract upon their own property. 


The Chairman. In answer to Mr. Leake, I want to sav that the 
Supreme Court of the United States says it is not an infrinfjement 
of a copyright. Mr. Herbert is here askin^r this committer now to 
give him something the law does not now grant him. 

Representative Currier. And more than that he is» asking us to 
create for him an absohitely new property right, which the Supreme 
Court says has absohitely no existence. 

Representative Legare. Something which they have never had 
before, and which will appear very drastic to the people. 

Mr. Herbert. How is it drastic, when they steal my works? 

Representative Currier. They can not steal something which the 
Supreme Court says is not property. The members of this committee, 
however, are exceedingly anxious to give you people some relief. 

Mr. Herbert. I hope they will. 

Representative Currier. If you gentlemen will approach this sub- 
ject like fair and reasonable men, ready to secure what you say you 
want, and that is compensation, in my opinion this matter can be 

Mr. Herbert. You have never made us any offer or any promise, 
nor have you. Senator Smoot. 

Representative Currier. At the first hearings I began to ask ques- 
tions along this line, with regard to a compulsory license. 

Mr. Herbert. But you would not listen to any argument by any- 
body else. You had your ideas fixed, just as we have our own ideas. 
1 am not coming here on my knees ; but I am merely asking for my 
ri^ts as an American citizen. 

Kepresentative Currier. You had all the time you asked for. 

The Chairman. If you were given the absolute right which you 
are now asking, what would prevent you from saying to the ^^olian 
Company, or to the Victor Tarlking Machine Company, that you 
would only allow them to produce your compositions s Is there any- 
thing to prevent a monopoly being formed, if you are given that 

Mr. Herbert. I do not see any monopoly there at all. Competi- 
tion is the soul of business. 

Representative Leake. There is a monopoly; but it is the same 
kind of a monopoly that the man who writes a book gives to his pub- 

Representative Currier. But these gentlemen have a double right, 
which the publisher of a book does not have. 

Representative Leake. That is only because it is used for two pur- 
poses. If the book could be used for another purpose, the right 
would undoubtedly extend in the same way. 

The Chairman. They have the same right now that a book has, so 
far as publication is concerned. 

Representative Legare. Do you own any stock in any publishing 

Mr. Herbert. No ; I don't own a cent. 

Representative Barchfeld. You are coming to Congress and ask- 
ing for additional legislation to give you a right which the law does 
not now give you. Th4 Supreme Court has declared that you have 
no standing in court. 

The Chairman. Mr. Burkaii, you are next in order, and have been 
allotted forty-five minutes. 

8©207— 08 .13 



Mr. BuRKAN. Mr. Chairman and gentlemen of the committee, I 
do not think there is any question in the mind of any member of this 
conunittee that a composer should be entitled to exclusive riffhts in 
his property, no matter what form that property may take. The de- 
sign of the Kittredge-Barchfeld bill is to secure that ri^ht. The 
only objection that is urged to the Barchfeld-Kittredge bill is that 
if the legislation is passed it will create one of the greatest monopo- 
lies in the history oi modern times. 

I come before this committee now and I say that the phonograph 
trust is the greatest and most oppressive trust in the United States, 
and I propose now to prove everv assertion that I make. I further 
j)ropose to prove that these people object to this legislation, because 
if you pass this bill it is going to interfere with their monopoly. 
They have formed an organization which they call the American 
Musical Copyright League, the purpose of which is not to secure to 
the author the full fruits of his labors but to defeat copvright. 
They tell you that they were not invited to the conference called by 
the Librarian of Congress to draft a copyright law and were not 
give.n- an opportunity to presiMit their views in drafting such a 

Why should the Librarian of Congress invite them to any confer- 
ence looking to the protection of the composer against their unau- 
thorized api)roj)riati(ms of his works? They never met the composer 
or his rei)n»sentativ(» and said: "' You have written a certain compo- 
sition which we want to use on our machines, and we would like to 
know for what reasonable rovalty you will let us use it. We arp 
willing to pay you a reasonable royalty." No such offer was ever 
made, i)ut, on the contrary, (»verv time the composts asserted that he 
had some rights to the mechanical rei)roduction of his work his rights 
were challenged and resisted with the greatest vigor. Every case 
that was started in the courts to establish the composers rights was 
contested by the manufacturers. The cases are Kennedy ?;. McTam- 
many. Stern /'. Rosey, and White-Smith Co. against Apollo Com- 
pany. In each instance the composer was defeated. Now, when the 
composer or his repres<'ntative, the publisher, comes before this com- 
mittee and urges this legislation to put a stop to this iniquity of per- 
mitting the manufacturer to appropriate the labors of tlie composer 
they tell you we are poing to create a monopoly. It is only a pre- 
text for the continuation of this injustice. 

Now, let us see about that monopoly. The United States Govern- 
ment has been protecting the mechanical manufaetuix»r and these de- 
vices for reproducing music bv patents, and by virtue of those patents 
these gentlemen have been forcing upon their dealers price main- 
tenance contracts which are most oppressive in restraint of tnide 
and suggestive of *' trust methods '' of doing business. I propose to 
j)Ut those contracts in evidence. 

Here is the contract of the American (iraphophone Company 
I exhibit iuir paper], of which the Columbia Phonograph Company is 
the sole sales agent, and, by the way, Mr. Paul Cromelin, the vice- 
president of the Columbia (iranhophone Company, appears before 
this committee as the vice-president of the American Musical Copy- 


right League, the puri>ose of which league is not to protect the intel- 
lectual worker in the fruits of his labor, as the title suggests, but to 
defeat this particular legislation, in so far as it may protect him. It 
is not a question of public interest or policy with this league, but is 
simplv in the interest of the Columbia Phonograph Company, organ- 
ized ror the purpose of defeating all copyright legislation looking to 
the betterment of the condition of the American composer in respect 
to mechanical devices. Here is the contract. It is headed " Notict* to 
Purchasers of ' Columbia ' Graphophones, Records, and Blanks." 
It sets forth that — 

AU •* Columbia *' pniphophonos, records, and blaukH are nmnufartiired by the 
American Graphophone Comiwiny under certain patents and licensi'd or sold 
through its sole sales a^ont, the Columbia Phonograph Company, genorMl, sub- 
ject to conditions and restrictions as to the iktsous to and the prices nt wliicli 
they may be resold by any person into whose hands they may come. Any vio- 
lation of such conditions or restrictions makes the seller or usi^r liable as an 
infringer of said patents. 

So that if a man buys a record embodying Victor Herb(»rt's com- 
position, and that man sells and disposes of tliat record at a price 
that he thinks fai/and reasonable in the regular course of business 
but in violation of this contract, he is an infringer and he may be 
prasecuted as such. Then they have the temerity to come before this 
committee and say that this projx)sed legislation is a great steal, and 
if passed will drive them out of business. 

iTie Chairman. Before you leave that point will you tell me 
whether there is any reason why any other manufacturing concern 
in the United States can not manufacture a disk record of Mr. Her- 
bert's production? 

Mr. BtrRKAN. There is a reason, and that is because of these 800 
patents that have been issued to them covering every possible phase of 
this subject^ and so that if a man jjoes into this business he is over- 
whelmed with litigation, as an infringer of one of these 300 patents. 

The Chairman. How many concerns are manufacturing disk 

Mr. BuRKAN. Three concerns. 

The Chairman. And how many cut perforated rolls? 

Mr. Burkan. I do not know anything about perforated rolls. I 
have no knowledge of that subject whatever. Twelve, I believe. 

This contract then proceeds: 

After reading the foregoing notice and in consldoration of trade <lis(()unts 
given to me (us) by the Columbia Thonograph ronipany. (General, I (wtM here- 
by agree to take any goods receivwl by me (us) fmui ssiid company, either 
directly or through any iuternie<iiary. under the conditions and restrictions 
referred to In said notice and, except in case of sjiles to bona fide retail dealers 
as hereinafter provided for, I (we) aj:nH> to adhere strictly to and to be bound 
by the official list prices established from time to time by said company, and 
that I (we) win neither give away, sell, offer for sale, nor in any way disi>ose 
of said goods, either directly or through any intermediary, at less than such 
list prices, or Induce the sale of such g<M»ds i)y glvinj: away or reflucing tlie price 
of other goods. I (we) further hereby npree not to sell or supply said goods, 
or any part or parts thereof, either directly or tbr<mgb any internietliary. at 
less than said official list prices to any but l>onM fide retail dealers, and not until 
they have first signed said comimuy's prescribed i)ri<-e maintenance contract 
governing and controlling sales by retail dealers, aufl in sn^ h sales I (we) 
agree to adhere strictly to and to be bound by the official discounts estal)lisbed 
from time to time by said ct)nipany, and that my (our) discounts to sjiid dealers 
shnl] not exceed those of said company on e<inal (piantities and under the sjime 
conditions. I (we) also agree not to sell to dealers on said company's sus- 


pended list or continue to soil to a dealer if he cuts prices or discounts, and I 
(we) understand that a breach of this agreement will amount to an infringe- 
ment of said patents and subject me (us) to a suit and damages therefor. 

I (we) acknowledge the receipt of a duplicate of the foregoing notice and con- 
tract and also a copy of the official list prices and discounts of said company, in 
force at the date hereof. 

No representations or guarantees have been made by the salesman on behalf 
of the said company which are not herein expressed. 

Now, they have obtained over 300 patents, covering every possible 
improvement in these devices, and I propose to offer in evidence, at 
this point, a list of the patents, and ask to have them put in the 

The list referred to is, by direction of the committee, inserted in 
the record, and is as follows: 

Memorandum of the number of patents in the following classes and of the 
number in the classes issued to each person named, to wit : 

Sound boxes, jjrraphophono. total number of patents '. 120 

T. A. Misoii 25 

Edison Phonograph Couii)any 4 

United States Phonograph (Company 1 

American Graphophone Company *. 10 

Stylophone Company 1 

Hawthorne & Slioble Manufacturing C(mipany 1 

Universjil Talking Machine Company ' 1 

New Jersey Patent Company 7 

Highamophone Company 1 

Regina Company 1 

Sound boxes, gramophone, total number of patents 1(X) 

United States Gramophone Company 1 

National Gramophone Corporation 2 

Universal Talking Machine Company • 4 

Victor Talking Machine Company 111 

T. A. I^lison 1 

American Gramophone Company. . 5 

Hawthorne & Slicble Manufacturing Conijiany 3 

lloj^ina Music Box Company 1 

American Graplioplmne ('onipany 11 

Talk-O-phone Company 1 

Nonpareil Company 1 

Graphophone tablets, turning and smootliin;:. total number of patents 23 

T. A. Edison 

Edison Phonograph Company 3 

Am(»rican Graphoi»li<>ne Company 1 

New Jersey Patent Company 2 

Grai>lioplKmes, multli)le record, total number 32 

American Multiplex Talkim: Maehine Company 4 

Mnlti-lMionograpIi Company 1 

Patent Hol<ling Company 1 

Graphophone, rcM'iproratintr rcj-onl. total nnmb(>r of patents 8 

T. A. i:kli8<m 2 

Stylophone Company . 1 

Graphoplioiies. fe^tl meclnmisms, total number of patents er> 

T. A. Edison G 

EdlK4^»n Phonograph Company 1 

United States Phonograph Company 1 

United States Gramophone Comimny 1 

Lyrophone Company ^__. 1 

Universal Talking Machine Com|)any 1 

New Jersey Patent Company 6 



Qraphophones, determining devices, total 6 

T. A. Edison 6 

Graphophones, mandrels, total number of patents 17 

T. A. Edison 3 

American Graphoplione Company 1 

Multiphonograpb CJompany 1 

Regina Company 1 

International Royal Phone Company 1 

New Jersey Patent Company 1 

Memorandum of the total number of patents in the following classes: 

Gramophones 130 

Graphophones 115 

Disk 27 

Swinging reproducer arm 8 

Tablets : 78 

Duplicating devices 97 

Method and machines for malving 24 

Class 181, Acoustics. 

Subclass 14. — Method and machines for nmking graphophone tablcia. 

437427. T. A. Edison, September 30, 1890, making method. 
42J)079. O. P. Austin, May 27, 1890, resurfacing method. 

329796. 0. B. Hadley, November 13, 1888, manufacturing. Assignor to Volta 
Graphophone Company, Alexandria, Va. 

400649. T. A. Edison, April 2, 1889, making method. 

400650. T. A. Edison, April 2, 1889, making method. 

393464. T. A. Edison, November 27, 1888, making machine. Assignor to Edison 

Phonograph Company. 
393463. T. A. Edison. November 27, 1888, making machhie. Assignor to Edison 

Phonograph Company. 
393462. T. A. Edison, November 27, 1888, making process. Assignor to Edison 

Phonograph Company. 

382417. T. A. Edison, May 8, 1888, making process. 
382790. B. Berliner, May 15, 1888, making process. 

606725. T. H. Macdonald, July 5, 1898, making process. Assignor to American 

Graphophone Company. 
626709. T. H. Macdonald, June 13, 1899, making process. Assignor to American 

Graphophone Company. 
726965. Miller & Pierman, May 5, 1903, making process. Assignor to National 

Phonograph Company. 
757867. A. Hamon, April 19, 1904, apparatus for casting cylinders. 
744339. A. Haug, November 17, 1903, apparatus for manufacturing cylinders. 
773978. A. N. Petit, November 1, 1904, process of making. 
773801. T. H. Macdonald, November 1, 1904, process of making. 
777629. A. Haug, December 13, 1904, process of making. 
790516. Miller & Pierman, May 23, 3905, apparatus for making. Assignor to 

New Jersey Patent Company. 
855557. J. W. Aylsworth, June 4, 1907, process of making. Assignor to New 

Jersey Patent Company. 
854886. V. M. Harris, May 28, 1907, api>aratus for makinj,'. 
878931. H. S. Berliner, January 11, 1908, method of making. 

Subclass 17. — Oraplwphones, tablets, 

341213. Bell, Bell & Tainter, May 4, 1886, radiophone. 
374133. C. S. Tainter, November 29, 1887, paper cylinder. 
385887. C. S. Tainter, July 10, 1888, disk. 

382418. T. A. Edison, May 8, 1888, cylinder. 
382462. T. A. Edison, May 8, 1888, cylinder. 

398190. C. S. Tainter, November 20, 1S88, composition. 
400648. T. A. Edison, April 2, ISS!), coiniiosition. 
406568. T. A. Edison, July 9, 1889, cylinder. 


4O05G0. T. A. Edison, July 9. 18S9, cylinder. 

414751). T. A. Kdison, November 12. 18K9. cylinder composition* 

40(>r»7(». T. A. Edison, July 9, 1889, cylinder composition. 

40899.S. W. B. Tattersliall, August la, 1889. cylinder. 

4147(51. T. A. Ellison, November 12, 18S9. cylinder. 

430274. T. A. Ellison, June 17, 18IK», composition. 

4214r)(). C. S. Ta inter, February 18, 1890, cylinder eom|>08ition. 

437429. T. A. E<lison, Sei)tember 30, 1890, cylinder comi)08itioii. 

430570. T. A. Edison, June 17, 1890, cylinder comiwsitiou. 

400338. I. W. Heyslnger, September 29, 1891, cylinder comi^osition. 

488191. T. A. Eilison, December 20, 1892, cvvlinder coniiK)sition. 

505910. J. E. Wnssenich, October 3, 1893. disk. 

664223. T. «. Lambert. December 18, 1900, cylinder eomi>08itioii. 

657956. A. N. Tetit, September 18, IIHH). cylinder. 

(R)6937. A. N. Petit, January 29, IIMH, cylinder. 

686321. F. Myers, November 12, 11K)1, disk. Assignor to Stylophone Company. 

689350. E. Berliner, Dec^ember 17, 1901, disk. Assignor to United States <;nii)lio- 

pbone Company. 
676111. J. W. Aylsworth, June 11, 1901, cylinder comi>08itioii. Assignor to 

National Phonograph romi)any. 
682992. T. H. Macdonald, September 17, 1901. cylinder. 
689117. A. N. Petit. December 17, 1901, cylinder comiK)sition. 
746806. J. II. Fedeler, I)ec*ember 15, 1903, cylinder or disk. 
717311. J. E. Alexander, De<-ember 30, 1902, disk. 

692623. A. Clark, February 4, 1902, seal for disks. 

692624. A. Clark. February 4," 1902, seal for cjllnders. 
701820. L. I». Valiquet. June 3, 1902, seal for disks. 

708828. A. H. IVtit, September 9, 1902, cylinder composition. Assignor to In- 
ternational Phonograph and Indestructible* IJecord <'om|>any. 

701649. L. P. Valiquet, June 3, 1902, disk. Assignor to Universal Talking 
Manufacturing Conji>any. 

713328. (i. II. Moore, Noveml)er 11, 1902. Assignor to Moore Talking Scale 

7271M>0. J. W. Jones, May 12. 1903, disk comiM)sition. Assignor to American 
Graphophone Company. 

739421. E. R. Julmwai, September 22, 1903, disk. Assignor to Victor Talking 
Machine Ccmipany. 

739318. E. n. Johnson, September 22, lfH»3. Assignor to Victor Talking Machine 

Be. 1201h;. T. H. Macdonald. March 10, V.H)'A, cylinder. Assignor to Amerlnin 
<iraplioi>hone Company. 

726966. MiiUM- iV: Picrnian, May 5. 11K)3, cylinder comiK>sition. Assignor to Na- 
tional Phonograph Company. 

74iMH»2. A. N. Pol it. January 5, 1904. <lisk. 

75<H19. A. N. Petit. January 19. IIMM, cylinder. 

7tns4r,. O. Messter. June 7, 19(M, disk. 

771758. C. N. Wurlh. Oct<»ber 4. IIMM. <ylinder. 

778976. E. K. Johnson. January 3, 11HC», disk. Assignor to Victor Talking 
MjKlijiH* Company. 

782375. J. W. Aylsworth, February 14, 19(»5, cylinder. Assignor to New Jersey 
Pjitriit Company. 

785191. H. S. P.erliner. March 21, IIH).'), disk. 

786347. W. S. Darby, April 4, 1JM).'», disk. Assignor to Victor Talking Machine 

785317. Maiiwarin;:, Emerson. Capps & Norton. March 21, 1905. cylinder. As- 
si;:nor t<» American <Traphoplione Company. 

787001. J. Sander. April 11, lliO.'), disk comiM»sition. 

790517. Miller & Pierman. May 23, 11M>5, cylinder. Assignor to New Jerst»y 
Patent t'ompany. 

800800. T. A. l'>lison, O<tober 3. VM)'k cylinder. Assignor to New .Tersey Patent 

78S927. W. 11. MilhT. May 2, 1905, cylinder. Assignor to New Jersey Patent 

79451>2. E. N. Dickerson, July 11. 1905. cylinder. 

80o;i;n. Shlgley & Paxtiin. SeptemlK»r 26. l!:n.-». cylinder. 

802135. N. Bryant. October 17. 19<»5. cylinder. 


8380<>8. V. H. Eiiierson, December 18, i*JO(i, disk. Assl^'uor to American (irapho- 

plioue Company. 
80t>21>3. Hoyt & (iaven, January 2, 1JK)6, illsk. As8ij?nor to Bnrt Company, New 

808842. Hoyt & Gaven, January 2, IIXK;, disk. Assipior to Burt Company, New 

180884,3. Iloyt & Gaven, January 2, 1000, disk. Assignor to Hurt Company, New 

8140r»3. H. Klein, March 6, lOOG. disk. 
810n.">8. Godwin & Hoffman, May 1, 1900, disk. Assignor to American Gnipho- 

phone (^om|)any. 
81JM)72. G. A. Manwaring, May 1, 1000, disk. Assignor to American Grapho- 

I)lione Company. 
822485. Shigley & Paxton, June 5, 1906, cylinder. 
82.''iO05. A. Maitre, July 3, 1006, disk. 
831770. V. H. Emerson, Sei^tember 25, 1006, disk. Assignor to American 

Graphophone Company. 
832403. J. H. Mllans, October 2, 1006, disk. 
837027. V. M. Harris, December 11, 100<i. cylinder. 
830372. T. A. Edison. December 25, 1906, cylinder comiwsltion. Assignor to 

New Jersey Patent Company. 
840032. B. B. Goldsmith, January 8. 1007, disk composition. 
842070. Brocherioux, Tochon, Fortier & Marotte, January 22, 1007, disk com- 
850404. J. Sanders, April 16, 1007, disk. 
855556. J. W. Aylsworth, June 4, 1007, cylinder composition. Assignor to New 

Jersey Patent Conii)any. 
854801. G. K. Cheney, May 28, 1007, comi)osition. Assignor to Victor Talking 

Machine Comi)any. 
855552. J. W. Aylsworth, June 4, 1007, cylinder comimsitioii. Assignor to New 

Jersey I*atent Comiiany. 
862407. T. H. Macdonald, August 0. 1007, disk comi)osition. Assignor to Ameri- 
can Grai)hophone Comijany. 
871370. W. I. Sherwood, November 10, 1JK)7, disk. Assignor to Phonograph 

Music Company. 
870061. A. Hoflfman, November 12, 1007, disk. 
877842. J. M. Higley, January 28, 1008, disk protector. 
878547. T. H. Macdonald, Fel)ruary 11, 11)08, disk coui|K)sltion. Assignor to 

American Graphophone Comi)any. 

Subclass 16. — Graphophone tablets — DupUcating devices, 

341287. S. Tainter, May 4. I^k disk method. 
382410. T. A. t^iison. May 8. 1.SS8, cylinder method. 

300264. G. H. Herrington, Msirch 12. issj), cylinder method. 

300265. G. H. Herringtcm, March 12. 1880, cylinder method. 

475400. L. F. Douglass, May 24, 18J)2, clyinder method and apparatus. As- 
signor to Ed. D. Easton. 

848582. T. A. Ekiison. October 18, 1802, cylinder process. Assignor to lulison 
Phonograph Conijuiny. 

488.381. G. Bettini, December 20, 1802, cylinder ai)|»aratus. 

545430. E. H. Amet, September 3, 1805, cylinder apimratus. Assignor to Chas. 

539212. E. H. Amet, May 14, 1805, cylinder ai)paratus. Assignor to Clms. 

548623. B. Berliner, October i:o. IS!).', disk in-ocess. ' 

550806. T. H. Macdonald, May 12, ISOO, cylinder a|>i)aratus. Assignor to Amer- 
ican Graphoi)hone Cominniy. 

640385. H. (J. Wolcott, May 8, V.UiO. cylinder ar»paratus. 

r».''0431. (i. H. Stevens, May 20. IIKRK cylinder pr(»cess. 

650739. H. G. Wolcott. May 20, 1IK)0. cylinder process. 

645920. T. B. Lambert, March 20, IIMK), cylinder prwess. Assignor to B. F. 
Philpot and Jos. 1^av(»1I. 

648035. T. A. Edison, May 8. lO^M). cylinder ai>|»aratus. 

657785. A. N. Petit, Sei)tember 11, 10(K). cylinder apparatus. 

657527. T. A. Edison, Sei>t ember 11, 1000, cylinder process. 


602301. A. N. Petit, November 20, 1900, cylinder apparatus. 

068154. 0. Bettini, February 19, 1901« cylinder apparatus. Assignor one-half 
to Edw. N. Dickerson. 

683979. A. N. Petit, October 8, 1901, cylinder apparatus. Assignor one-half to 
A. O. Petit 

G83676. Aylsworth & Miller, October 1, 1901, cylinder apparatus. Assignor to 
National Phonograph Company. 

680520. T. A. Edison, August 13, 1901, cylinder process. 

683862. A. N. Petit, October 1, 1901, cylinder process. Assignor to A. O. Petit 

067202. T. A. Edison, February 5, 1901, cylinder apparatus. 

667662. T. A. Edison, February 5, 3901, cylinder process. 

(183615. Miller & Aylsworth, October 1, 1901^ cylinder process. Assignor to 
National Phonograph Company. 

666493. F. L. Capps, January 22, 1901, cylinder process. Assignor to American 
Graphophone Company. 

682901. T. H. Macdonald, September 17, 1901, cylinder process. 

6SJ)5.36. F. L. Capps, Decembor 24. 1001, cylinder process. Assignor to American 
Graphophone Company. 

(W91ia A. N. Petit. I>eceni]>er 17, 1001. cylinder process. 

(»r»6819. J. K. Reynard. January 20. 1901, cylinder process. Assignor to Amer- 
ican Graphoplione Company. 

688921. G. Bettini, I)e<nieber 17, 1901, cylinder apparatus. Assignor one-half 
to Edw. X. Dickerson. 

ri(;7600. G. H. Stevens, February r*, 1001, cylinder process. 

6.S.S739. J. W. Jones. Deeeniber 10, lt>01, cylinder process. Assi^ior one-half 
to Jos. A. Vinvent. 

6S1M08. A. N. I*etit. December 24, 1JK)1, cylinder process. Assignor one-lialf to 
A. (). Petit 

(i72909. M. C. Ix^fferts, April 30, 1JK)1, cylinder process. Assignor to The Cellu- 
loid Company. 

Ke. 11917. G. II. Stevens, July 2, 1901, cylinder process. 

670442. C. S. Taint(»r, March 26, 1901, cylinder apparatus. Assignor to Ameri- 
can (Jraplioplione Company. 

<kS4455. a. N. Petit, October 15, IIKH, cylinder apparatus. Assignor one-half 
to A. O. Petit. 

705775. W. F. Messer. July 29. 11K)2, <'ylinder apparatus. Assignor to Tjsmbert 
Company, (^birnjro. 111. 

c;nj337. A. N. Petit, Febrnary 4. VMy2, cylinder apparatus. Assignor to A. O. 

(;'.>72.'>6. B. Kaplan, April 8, 1902. cylinder apparatu.s. 

7i:rj()9. T. A. K<lison, NoviMnber 11. 11M)2. eylinder process. 

TM707. J. W. Jones, DtM-eniber 2, 11K)J. disk a]»paratu«. 

III'. 12(H)r>. T. H. Macdonald, March 10, 1903, cylinder process. Assipior to 
American (Jraphoplione Company. 

72S(M)7. A. N. Petit May 19, 10<»:*>. cylinder apparatus. Assignor to Interna- 
tional Piiono^raph and Indestructible Record Company. 

7:u»773. A. N. Petit, Anjrust IS, lfK).'l. cylinder method. Assijnior to Intenia- 
ti(»nal Phonograph and lndestrn<'tible Record Company. 

7;!.nr»79. A. N. Petit, August 4, VMV.l, cylinder method. Assi;rn(»r to Tnterna- 
tionnl Plionojjjraph and Ind«'strnctii)le Record Company. 

7:iJ>7i3. A. N. Petit. Septenjl»er 22, 11H>.3, cylinder apparatus. Assi^rnor trt In- 
ternational Phonojrrapli and Ind<»slni<'tible Record Company. 

7*jss<»7. F. W. H. Clay. Mny 26, VM):\. disk process. 

7::".VJ1. C. Walrntt, .iuly 14, 11»03, cylinder ap|)aratns. 

7-11! 154. T. B. Lambert, October 27, 1903, cylinder pr<M*ess. Assignor to Lam- 
bert Company. 

7I'JI55. T. B. I^iniliert, Octol)er 27, 1903, c>-linder apparatus. 

7.''i011S. A. N. Petit, Janujiry 19. 1904, cylinder a|>i>aratn8. 

71'.<»:{(). T. A. & J. B Coimolly, Jsinnnry 5. 1904. method. 

77;:r»:52. T. A. & J. B. Connolly, 25, I'MH, metlnMi. 

7<=: r»r»4. J. W. Jones, June 2s, 1J)<M, disk prnc.s.s. 

7<>.«MM. J. W. Jones. June 28, 1!)04, disk |a-o<«'ss. 

77lss(K Miller & Picrnian, October 11. 11M»4, ryllnder process. Assignor to Xcw 
Jersey Pnteiit <'omi»jniy. 

773617. A. F. Wnrtli. Nov«»mlM*r 1, 11m»4, cylinder priKiss. Assignor to New 
Jeisey Patent Company. 


774192. G. A. Ifanwaring. November 8, llKM, cylinder process. Assljnior to 

Americmn Grapho|>lione Company. 
781893. Miller it Aylsworth, February 7, 1905, cylinder apparatus. Assignor 

to New Jersey Patent Company. 
783934. D. A. Dodd, February 28, 1905, cylinder apparatus. Assignor to New 

Jersey Patait Company. 
7S3420. Capps it Emorson, February 28, 1905, disk process. Assignor to Ameri- 
can Graphopbone Company. 
783176. G. K. Cheney, February 21, 1905, disk prmt^ss. 
7.'s5319. Miller & Plerman. March 21, 1905, cyliiuler api)arntu8. Assignor to 

New Jersey Patent Company. 
7.S5510. Miller & Plerman, March. 21, 1906, cylinder apiwratus. Assignor to 

New Jersey Patent Company. 
7S5316. Manwaring, Emerson, Norton & Capps, March 21, 1905, cylinder method. 

Assignor to American Graphophone Company. 
790351. T. A. Edison, May 23, 1905, cylinder method. Assignor to New Jersey 

Patent Company. 
790518. Miller & Plerman, May 23, 1905, cylinder method. Assignor to New 

Jersey Patent Company. 
817831. E. L. Aiken, April 17, 1906, cylinder apparatus. Assignor to New Jersey 

Patent Company. 
824710. E. Desgrandchamps, July 3, 1906, disk apimratus. 
827295. D. A. Dodd, July 31. IfKXJ, cylinder apparatus. Assignor to Now 

Jersey Patent Company 
828604. W. H. Hoyt, August 14, 11K)G. disk process. 
831668. M. Joyce, September 25, 1906, cylinder method. Assignor to Now 

Jersey Patent Cyompany. 
&33689. I. Kitsee, October 10, 1906, cylinder apparatus. 
a?4485. W. F. Nehr, October 30, 1906, cylinder apparatus. Assignor to New 

Jersey Patent Company. 
837061. V M. Harris, November 27, 1906, cylinder method. Assignor one-tifth 

to Robt Bums. 
836646. T. H. Macdonald, November 20, 19(Hn disk prcx^ess. 
835510. I. Kitsee, November 20, 1906, disk process. 
836417. W. S. Tyler, November 20, 1006, cylinder apiwratus. Asslu'uor to 

American Graphophone Company. 
836089. F. L. Capps, November 20, 1906, cylinder api)aratus. 
846411. V. M. Harris, March 5, 1907, cylinder apparatus. Assignor one-tifth 

to Robt. Bums. 
847338. W. H. Hoyt, March 19, 1907, disk apparatus. 
847820. J. O. Prescott, March 19, 1907, disk apparatus. 
850957. W. F. Nehr, AprH 23, 1907, cylinder i)roce8s. Assignor to New Jersey 

Patent Company. 

855553. J. W. Aylsworth, June 4, 1907, cylinder process. AssI junior to New 

Jersey Patent Company. 

855554. J. W. Aylsworth, June 4, 1907, cylinder process. Assignor to New 

Jersey Patent Company. 

855555. J. W. Aylsworth, June 4, 1907. cylinder process. Assignor to New 

Jersey Patent Company. 

855605. J. W. Aylsworth, June 4, 1907, cylinder process. Assignor to New 

Jersey Patent Company. 

855606. J. W. Aylsworth, June 4, 1907, cylinder process. Assignor to New 

Jersey Patent Company. 

854887. V. M. Harris, May 28, 1907, cylinder apparatus. 

866219. C. A. Reiners, September 17, 1907, apparatus. Assignor to Evans 
Phonograph Company. 

867975. W. H. Hoyt, October 15, 1907, disk method. 

871511. I. Kitsee, November 10. 1907, disk niotli.Ml. 

871554. J. W. Aylsworth. November 19, 1907, cylinder method. Assignor to New 
Jersey Patent Company. 

874966. I. Kitsee, December 31, 1907, disk method. 

877846. I. Kitsee, January 28, lfK)8, disk nu'thod. 

S78513. V. H. Emerson, February 11. li:ns. di>k apparatus. Assii:nor to Ameri- 
can Graphophone Company. 

879363. G. K. Cheney. February is. lt»0>>, disk apparatus. Assignor to Victor 
Talking Machine Company. 


SrncLAss 1*. — (intphophones, 

277340. J. H. Rogers, May 8, 1888, telegraph record cylinder. 

38(>y74. T. A. Edison, July 31, 1888, cylinder. 

375579. C. S. Ta inter, December 27, 1887, cylinder. 

341288. C. S. Ta inter, May 4, IHm, cylinder. 

380535. C. S. Talnter. April 13, 1S88, cylinder. 

392953. G. H. Herrington, November 13, 1888, cylinder recordfnir. 

893640. E. T. Gill Hand, November 27, 1888, cylinder. Assignor to Edison Phono- 

grapli Company. 
393967. T. A. Edison, December 4, 1888, cylinder. 
393066. T. A. Mison, Detrember 4, 1K88, cyHnder. 
383299. W. W. Jacques, May 22, 188.S, record. Assignor to Edison Phonograph 

Toy Manufacturing Company. 
413282. W. W. Jacques, October 22, 1889, record. 
430276. T. A. I^Mlson, Jmie 17, 1890, cylinder. 
423039. T. A. tMison, March 11, 1890, record. 
424956. D. W. Brown, April 8, 1890, cylinder. 
429827. J. n. White, June 10, 1890, cylinder. 
432462. J. H. White. July 15, 181K), cylinder. 
432886. J. P. Maginis, July 22, 1800, cylinder. 
436576. J. Daniels, September 16, 1«K), cylinder. Assignor to Edison United 

Phonograph Comi>any. 
437423. T. A. Edison, September ,'$0, 1890, cylinder. 
437426. T. A. Edison, September 30, 1890. cylinder. 
440155. I. W. Heysinger, November 11, ISIM), cylinder. 
467530. J. n. White, January 26, 1802, cylinder. 
465J»72. T. A. E<lison, December 20, 1891, cylinder. 
474946. L. D. Clarke, May 17, 1S02, cylinder. 
486:^)4. W. Bruening, November 15. 1802, recording. 
486<M)8. W. Bruening, November 22, 1802, recording. 
499879. T. A. Edison, June .20, 1893, cylind<»r. Assignor to Edison Phonograph 

528273. H. J. I.ioret, October 30, 1894, cylinder. 
527755. T. H. Macdonald, 0<tober 16, 1804, cylinder. 
530254. A. C. Ferguson, May 14, 1S05, cylinder. 
511402. W. Bruening, Dt^'ember 26, ISO.*?, cylinder. 
56i)2*,K). T. H. Macdonald. October 13, 18J)6, cylinder. Assignor to American 

Grapliophone Company. 
570505. T. H. Ma<(lonal(l, March 30, 1S07, cylinder. Assignor to American 

Graphophone Company. 
ril0706. T. A. I'klison, September 13, 1808, cylinder. 
(>:;i.V>8. J. Chania. August 22, 1800. light waves. 
{\:\:^V2(). G. Bettini. October 17, 181K), cylinder. 
tK)6.S22. T. II. Macdonald. November 14, 1800, cylinder. Assignor to American 

Graphophone Comi)any. 
(;7n2SO. W. Bohne, September 4, 1000, cylinder. 
{\:^\*X\7. J. N. Blackman, July 31, 1?MX). cylinder. 
rM!»02^. B. B. Hill, October 2, 1900, cylinder. 

6i'.073t». G. W. (lomber, October 16, 10(X), cylinder. Assignor to American Multi- 
plex Talking Machine Companj-. 

650735. G. W. (Jomber, October 16, VMKK cylinder. Assignor to American Multi- 

plex Talking Machine Company. 

650736. G. W. Ci<>mber. October 16, IJMH.), cylinder. Assignor to American Multl- 

I)lex Talking Machine Company. 
,'l3r»203. C. A. Bell, i'ebruary 16, 1S.S6. re<.-ordlng telephone. 
074575. A. L. DuwcPus, May 21, IIK)!, cylinder. Assignor to A. II. & W. 8. 

6So:W0. T. H. Ma<donald, August 13. 1901, cylinder. Assignor to American 

(Jraphophone CV>mpanj'. 
680704. T. II. Macdonald, August 20, 1901, eyllnder. Assignor to American 

<irapli(»p}irme C<»nipany. 
6S404:t. (;. W. Merrill. October 22. 1001. Assignor one-half to Rol)ert Merrill. 
671025. K. A. Ha\vth<»rne. April 0. IIMH. cylinder. 
e9s<>s2. C. W. N'crnon. April 22, 11h»2, cylinder. Assignor one-half to M. C. F. 

and M. Ilanibly. 


0070(30. G. Bettin!. April 22, 1002, cylinder. 

714G51. T. H. Maedouald, Xoveuiber 25, 1002, record. Assignor to American 

Grapbophone Company'. 
711706. T. H. Macdonald, October 21, 1902, cylinder. Assignor to American 

Grapbophone Company. 
725878. W. C. Runge, April 21. 1J)03, cylinder. 
74(>1I00. P. A'^ogel, December 8, 1003, cylinder. 
700115. A. N. Petit, July 26, 1904, cylinder. 
772485. Weber & Hibbard, October 18, 1004. Assignor to New Jersey Patent 

774100. C. W. Xoyes, November 1, 19(M, cylinder. Assignor one-balf to J. H. 

773304. P. B3, Van Valkenburgb, October 25, 1904, cylinder. 
777306. C. J. Rawllnson, December 13, 1904, cylinder. 
784603, L. Devinean, March 14, 1905, cylinder. 
678566. D. Higbam, July 16, 1901, cylinder. 
783750. D. Higbam, February 28, 1905, cylinder. Assignor to HIghamophone 

796743. T. H. Macdonald, August 8, 1005. Assignor to Ajnerican Graphoi)hone 

801634. W. Asam, October 10, 1905. cylinder. 
811010. P. Weber, January 30, 1906, speed index. Assignor to New Jersey 

Patent Comi)any. 
821071. P. Weber, May 22, 1006, adjustment. Assignor to New Jersey Patent 

836940. C. W. Noyes, January 27, 1906, cylinder. Assignor to Hawthorne & 

Shet)le Manufacturing Company. 
847631. B. L. Aiken, March 19, 1907, cylinder. Assignor to New Jersey Patent. 

847687. A. W. Piernmn, March 19, 1907, cylinder. Assignor to New Jersey 

Patent Company. 
855622. Durand & Aiken, June 4, 1007, cylinder. Assignor to New Jersey 

Patent Company. 
861827. C. G. Ganard, July 23, 1007, cylinder feed. Assignor to Edison Bell 

Consolidated Phonograph Company (Limited). 
860332. W. C. Runge, July 16, 1907, adjustable arm. Assignor to International 

Royal Phone Company. 
867597. A. N. Pierman, October 8, 1907, clyinder. Assignor to New Jersey 

Patent Company. 
874973. T. H. Macdonald, December 31, 1907, cylinder. Assignor to American 

Grapbophone Conn.mny. 
875309. B. L. Aiken, December 31, 1907, cylinder. Assignor to New Jersey 

Patent Company. 
876350. D. Higbam, January 14, 1008, cylinder. 
878032. E. L. Aiken, February 4, 1908, cylinder. Assignor to New Jersey 

Patent Company. 

Subclass 5. — Oraphophonea — Disk, 

841214. Bell & Ta inter, May 4, 1886. 

385886. C. S. Tainter. July 10, 18K.S. 

428273. M. L. Deering, May 20, 18!)(). 

462687. W. Bruening. November 10, ISOl. 

619614. L. D. McKelvey, May 8, 1804. 

532851. J. B. Wassenich, January 22. 1805. 

595053. A. C. Ferguson, December 7, 1S1)7. 

609268. T. A. Edison, August 16, 1808. 

639452. G. T. Smallwood, December 19, 1^9. 

653667. A. C. Ferguson, July 17, 1000. 

663192. F. Myers, December 4, 1000, assignor to Stylophone Company. 

672235. F. Myers, April 10, 1001, assignor to Stylophone Company. 

671305. J. D. Blagden, April 2, 1001. 

663194. F. Myers, December 4. 19(K). 

683130. T. H. Macdonald, September 24, 1001, assignor to American Grapbo- 
phone Company. 

685024. J. E. Alexander, October 22, 1901, assignor to General Phonosphere 


G87434. F. Myers, November 26, 1901. 

U92409. J. E. Alexander, February 4, 1902, assignor to General Phonosphere 

759348. A. Clark, May 10, 1904. 

859180. Rabe & Kanirath, July 2, 1907, assignor to Tianday Brothers, of New- 
York, N. Y. 

877207. T. H. Macdonald, January 21, 1908, assijjnor to American Grapiiopbone 

Subclass 3. — Ora mo phones. 

364472. L. Bock. Jr., June 7, 1887, recorders. 

35C877. C. J. Hobenstein, February 1, 1887, recorders. 

372786. E. Berliner, November 8, 1887, recorders. 

427279. W. Suess, May 6, 1S90, recorders. Assignor to E. Berliner. 

534543. B. Berliner, February 19, 1895, recorders. Assignor to United States 
Gramophone Company. 

5C4586. E, Berliner, July 28, 1896, recorders. Assignor to United States Gram- 
ophone Company. 

60aS15. J. W. Jones, March 8, 1898, recorders. Assignor to J. A. Vincent. 

002490. J. A. Vincent, April 19, 1898, recorders. 

024301. C. G. Conn, May 2, 1899, recorders. 

619916. D. S. Williams, February 21, 1899, recorders. Assignor to J. A. Vin- 

025957. T. 8. Parvin, May 30, 1899, recorders. 

G;i4i>44. E. R. Johnson, October 17, 18J)9, recorders. 

651905. L. P. ValWiuct, June 19, 1900, reproducers. Assignor to Universal Talk- 
ing Machine Company. 

051904. L. P. Vali<in<»t. June 19, 1900, reproducers. Assignor to Universal Talk- 
ing Machine Company. 

663192. F. Myers, December 4, 1900, recorders. Assignor to Stylophone Com- 

650843. E. R. Johnson, June 5, 1900, recorders. 

651076. E. R. Johnson, June 5, 1900, recorders. 

689349. E. Berliner, December 17, 1901, recorders. Assignor to United States 
Gramophone C()nii)any. 

676106. L. P. Valiquet, June 11, 1901, recorders. Assignor to Universal Talking 
Machine Manufacturing Company. 

717953. Ti. P. Vnll<iuet, January 6, 1J)03, n^-orders. Assignor to Universal Talk- 
ing Machine Manufacturing Company. 

7221)77. (i. 11. Hall, March 17, 1903. recorders. 

72S-S(i7. F. W. II. Clay. May 26, lfK)3, process making. 

7415<MK E. R. Johnson, October 13, 1903, recorders. Assignor to Victor Talking 
Machin<' Company. 

742006. E. R. Johnson, October 27, 1903, reproducers. Assignor to Victor Talk- 
ing Machine Company. 

730986. C. S. Tainter, June 16, liK)3, re|>r<xlucers. Assignor to American Graph- 
ophone Company. 

752682. E. R. Johnson, February 24, 1904, rworders. Assignor to Victor Talk- 
ing Machine Oun|>any. 

IVAMmi T. I*. Burnbauni, May 24, 1904, record plate. 

7.*'»4.^»08. C. W. Skiflf and S. A. (Jrant, March 15, IJKM, reinoducers. Assignor to 
rnite<l States Music Machine Company. 

759143. L. P. Valiijuet, May 3, 1904, reproducers. Assignor to Victor Talking 
Machine Company. 

Re. 12213. E. R. Johnson, April 24. 1904, reproducers. Assignor to Vht<»r Talk- 
ing Machin«» Company. 

75!»142. L. P. Valiquet, May 3, 1904, reproducers. A.ssignor to Victor Talking 
Machine Company. 

7r».'»462. W. N. Dennison, July 19, 1904, tumtabli*. Assignor to Victor Talking 
Ma(*hin<> Company. 

77.3290. E. R. Johnson and W. C. Moore, Octolier 25, linH, reproducer. Assignor 
to Victor Talking Machine ComiMiny. 

774435. E. R. Johnson, Noveml>er a HKM. cabinet. Assignor to Victor Talking 
Machine Company. 

7761 S3. J. Jetter. November 29, 1904, reproducer. Assignor to Victor Talking 
Machine Company. 


776194. H. B. Morgan, November 29, 1904, reproducer. Assignor to Victor Talk- 
ing Machine Company. 

178492. E. K. Jolmson, December 27, 1904, turntable. Assignor to Victor Talk- 
ing Machine Company. 

779030. L. F. Douglass, January 3, 1905, cabinet. Assignor to Victor Talking 
Machine Company. 

781429. E. R. Johnson, January 31, 1905, recorder. Assignor to Victor Talking 
Machine Company. 

785362. E. R. Johnson, March 21, 1905, reproducer. Assignor to Victor Talking 

Machine Company. 

785363. B. R. Johnson, March 21, 1905, reproducer. Assignor to Victor Talking 

Machine Company. 
700546. A. C. Wiechers, May 23, 1906, sound conductor. Assignor to Regina 

793627. F. Myers, June 25, 1905, recorder. 
793140. G. A. Manwaring, June 27, 1905, recorder. Assignor to American Graph- 

ophone Company. 
805923. J. H. Lutz, November 28, 1005, reproducer. Assignor to Victor Talking 

Machine Company. 
814786. B. R. Johnson, March 13, 1006. reproducer. Assignor to Vi^or Talking 

Machine Company. 
816978. H. J. Hagan, April 3, 1906, reproducer. Assignor to Universal Talkhig 

Machine Company. 
831606. T. A. Edison, September 25, 1906, recorder. Assignor to New Jersey 

Patent Company. 
834511. J. C. English. October 30, 1906, reproducer. Assignor to Victor Talking 

Machine Company. 
842982. C. Thomas. February 5, 1907, recorder. 
847a33. E. Wardrina, March 12, 1907, recorder. 

852725. T. Kraemer and H. Sheble, May 7, 1907, recorder. Assignor to Haw- 
thorne & Sheble Manufacturing' Company. 
856704. E. R. Johnson, June 11, 1907, reproducer. Assignor to Victor Talking 

Machine Company. 
8r»1311. E. T. Palmer, April 23, 1P07, recorder and reproducer. 
855674. H. Sheble, June 4, 1907, reproducer. Assignor to Hawthorne & Sheble 

Manufacturing Company. 
855761. J. H. Elfering, June 4, 1907. Assignor to Victor Talking Machine 

864758. H. Schroder, August 27, 1907, reproducer. Assignor to Schroder Horn- 
less Phonograph Manufacturing Company. 
865399. H. Koth, September 10, 1907, horn. Assignor to Regina Company. 
865398. H. Koch, September 10, 1907, reproducer. Assignor to Regina Company* 
868612. E. H. Mobley, October 15, 1907, reproducer. Assignor to Hawthorne 

& Sheble Manufacturing Company. 
872783. H. B. Babson and A. Haug, December 3, 1907, reproducer. Assignor to 

Universal Talking Machine Company. 
872586. H. Sheble, December 3, 1907, reproducer. Assignor to Hawthorne & 

Sheble Manufacturing Company. 
872399. T. Zoebl, December 3, 1907, reproducer. 
874985. A. J. O'Neill, December 31, 1907, record plate. 

Oraphophones — Tape, 

392953. G. H. Herrlnpton, November 13, 1888. 
464476. G. H. Herrlngton, December 1, 1891. 
287166. C. C. Reynolds, October 23, 1883. 
458916. E. Oxley, September 1, 1891. 
397856. G. H. Herrlngton, February 12, 1889. 

502382. C. A. Randall, August 1, 1893. 

502383. C. A. Randall, August 1, 1893. 
341214. C. A. Bell and S. Talnter, May 4, 1880. 
520106. H. B. Coz, May 22, 1894. 

695159. T. B. I^mbert, March 11, 1902. 
a31558. J. Chania, August 22, 1899. 
356877. C. J. Hohenstein, February 1, 1887. 


Mr. BuRKAN. If any man goes into this business and begins to 
manufacture these records, which without the musical compositions 
they are adapted to reproduce are not worth the material they are 
made of, he is immediately oppressed by litigation, as an alleged 
infringer of the patents owned by the trust, so that he is left in the 
position of either going into bankruptcy, or else he sell his stock 
and plant as junk. 

The Columbia Phonograph Company, in a letter to The Musical 
Age, says as follows: 


Editor Musical Age, 

In tho loading cMUtorial of your issue of August 31, quoting from an article 
whicli touclu's upon tlie Ufe worli of our president, Mr. Mward D. K:ist(»n. an 
tTFor of fact wlifcli api)earoil in tlie original article is unfortunately copied, 
and so, though through no fault of yours, is repeated and the mistake empha- 
sizetl and i>#rpetuated. 

The article reads: 

" T'nder his guidance the business began the giant strides that are a matter 
of financial history. Thirty companies that had l)een organized to cover the 
greater part of the T'nited States gradually vanished, but the Columbia kept 
on until to-day it boasts $.3,000,000 assets." 

As our assets are nearly $J),000,000, there would be but slight occasion to 
** l)<)ast $.3,000,000 assets." 

Outsido of trade circles the matter is of but slight importance, but aa your 
article will l)e undouhtcHlly widely read and i)erhaps requoted, we will appre- 
ciate either your publisliing this or making such other correction as you may 
det»m b«»st. 

Very truly yours, Paul H. Cromelin. 


And so these 80 companies have been vanquished and all their 
investment lost under the pretense* that these 302 patents covered all 
of the impi'ovenicnts in the records and mechanical devices used by 
these 30 vanquished coini)anies. 

Now, to go back to the contract, you will see it provides that the 
Jobbers nnist not sell or offer for sale, either directly or through any 
intermediary, the records and blanks of the Columbia Phonograph 
Comj^any at a better discount than is authorized by the Columbia 
Phono^raj)h Comj)any, (ieneral : nor shall they allow an^' discount 
whatev(»r from the list price, either directlv or through any inter- 
mediary, to dealers who are on the suspended list. 

Now, what is the suspended list i It is a black list. I Mieve that 
Mr. Harris has already turned over to Senator SuKK^t the susi>ended 
list issued by the Ediscm Ph<mograph Company. 

The ChaikmAx. I InOieve there was such a list sent me through the 
mail. I will say. however, that one of the concerns named on that 
published black list wrote to me and told me that they were paying 
no attention whatever to it. 

Mr. BiKKAN. But they j^ublisli a black list, so that if any man goes 
to theses people and pays his money for the record they condescend to 
sell him, although he buys the pronerty of the composer when he buys 
it and pays the price they demand for it, and then offers to m»11 it to 
the consumer for le-^s than the price adopted by this trust, his name 
g(H»s on the suspended list and he is not sup]^>lied with any more goods, 
and treated as an infringer and subjects himscdf to a siiit for an in- 
junction, damages, and confiscation of the stock he has on hand. 


The Chairman. There is nothing in this bill wo hnvo inider con- 
sideration that would touch that point in any nianni'i*, shape, or form, 
is there? 

Air. BuRKAN. No, sir. 

The Chairman. Especially if we take ont section 44. 

Mr. BuRKAN. I submit that this cry of nionoi)oly conies with bad 
grace from gentlemen who are themselves guilty of the most flagrant 
and oppressive restraint of trade. I propose to show that they have 
come into the United States courts and obtained injin!(:i<ms, confis- 
cating the goods of business men who, in good faith, have parted 
with their money and bought these records from jobbers. 

Here is a case in which they had soUl a jobber a number of ma- 
chines at a fixed price of $25 a machine. The agreement entered 
into between the manufacturer and the jobber was that the machine 
was not to be sold for less than $:^5. The jol)l)er sold the machines 
to the owner of a department store, who offered to sell the machines 
for $18. Having paid for the goods, one would think that he had a 
right to give them to the poor if he liked. These pe()[)le brought 
him before the United States court, however, and got an injunction 
restraining him ffom selling these goods for less than i?25 a machine, 
on the ground that he was infringing the patents of this company. 
Mind you, he was no party to the agreement, but notice how far they 
can go with their patents; and they asked, in their bill, that he be 
declared an infringer, from which it followed that he was bound to 
turn over to them the records he had in his possession, although he 
paid for them, which were confiscated by this comi)any. 

I offer in evidence a similar agreement reipiired of dealers and job- 
bers by the Victor Talking Machine Comi)any, by the Edison Phono- 
graph Company, and the price maintenance coiitraet of the Colum- 
bia Fhonograph Company, General. 

The said contracts are, by direction of the committee, inserted in 
the record, and are as follows : 

Effective June 1, 190G. 

Dkalebs' Cowtbact — List Prices, N>rr Prices and I>is(ount8, Terms and Con- 
ditions OF Sale — Agreement for the I'mted States of America. 

In force between the dealers of Victor talking nmchines, records, horns, and 
aceeBSories, and the Victor Talkinj: Machine Company, of Cainden. N. .!., 
U. S. A. (Subject to change and revision on notice from the Victor Talking 
Mflcbine Comptiuy.) Issned by American Talking Machine Company, 580 
Fnlton street, Brooklyn, N. Y. 

It will be uarticularly noted that all Victor talking machines, records, horns, 
sound boxes, and acct»8sorles are covered by letters patent owneil and contr<»lle<l 
by the Victor Talking Machine Company, and are license*! for sale and use only 
under the conditions attached to the gocnls, and any sale or nse of any of tbe 
goods in violation of any of the conditions, exct-pt as to modified i>rlce to the 
public on records as herein provided, will be an Infringement of the patents of 
the company. It is distinctly understood that nothing contained In this contract 
shall in any way otherwise alTect the chanictcr of the conditions of the llmlteil 
license under which said goods are sold, as noted on the label attached to the 
goods, and that this contract Is not Intendinl to and does not take the place of 
the lic^se attached to the goods, directly or indlrtHtly. 


Any dealer desifiug to handle Victor talking machines, n^-ords, and snpplles 
and not having prevfpusly enjoyed dealers' dlscoimts on Victor goods must 


qualify as a dealer by purchasiug at least three Victor macbines of different 
styles, and 100 Victor records. 

In addition, the dealer must have an established place of business, suitable 
to display our ^oods, and at all times keei) on hand sufficient stock for exhibition 
and sale purposes. 


All Victor talking machines, .records, sound boxes, horns, parts, and miscel- 
laneous supplies are sold at the company's factory in Camden, N. J., under 
patents owned and control UkI by the Victor Talking Machine Company, as here- 
inbefore noted, under a restricted license under the conditions set forth on the 
labels attached to the goods; and all sales to dealers and consumers of said 
patented goods are subject also to the conditions noted in this dealers* contract. 
The right to the sale and use of said goods is dependent upon the observance 
by the vendee of all of said conditions. Among numerous other United States 
patents owner or controlled by the Victor company under which the said goods 
are manufactured and sold are: No. 534543, issued February 19, 1895, for gramo- 
phone, and No. 548623, issuetl October 29, 1895, for sound record, to Emile Ber- 
liner, and No. 814786 and No. 814848, issued March 13, 1906, to B. R. Johnson. 
The number and dates of other Tnited States patents will be furnished on re- 
quest. The conditions of this contract are as follows: 


1. Dealers must not sell or ofler for sale at retail, either directly or indi- 
rectly, any A'ietor talking machines, records, or supplies therefor at less than 
the licensed retail [»rices. Neither shall any of the regiilar factory product as 
illustrated in the regular catalogues of the Victor Talking Machine Company 
be given away as i»reniinnis. nor shall any other merchandise, trading stamps, 
negotiable paper, or other inducements be olTered with them as an incentive to 
promote their sale. 


2. No license or permission is ^rantetl for the sale of shop-worn, damaged, 
or scH'ond-hand Victor talking niarhines, records, or supplies at reduced price.*, 
and will not be allowed. If, however, the dealer wishes to sell a legitimate 
s<vond-hand. or an out-of-date, old-style Victor machine, and will inform the 
factory in writing: of that intention, together with the serial number of the 
machine in questi(»n, and this number proves the machine to have been sold 
by the factory a year previously, then a special license in writing will be 
issued by the Victor Talking Machine Company to that dealer permitting the 
sale at a reduced price, If the ne<essary facts are establishe<l to the satisfac- 
tion of the Victor company. A new notice or label bearing the serial number 
and conditions will then go f(>rward with the permit, and must be afllxed to 
the bottom of the machine, showing at the time of the sale that this machine 
is sec<uid hand and is licensed to be sold at reduced price. It is distinctly 
understood, however, that no such second-hand or out-of-date or old-style 
machine shall be sold until all of the above provisions are compiled with and 
until the said new notice or lal)el -shall be properly attached to the machine. 

3. The labels and plates of Victor talking machines and records must n<»t be 
removed or defsiced. The selling of machines or records with these lal>el8 
removed or defact-d will constitute an infringement of patents under which the 
machines, records, horns, sonntl bo\t»s, etc., are sol<l. 


4. Authorized dealers are at lil)erty to borrow Victor goods from another 
authorized dealer, If nnitually agreeable, but each time the goods Imrrowed 
must be replaced by g(>o<ls of the same make and style. If an outright sale is 
to !)e made frcmi one dealer to another, it must be at list prices, and in no case 
shall the said sale be at dealers' cost 



5. To substantially uphold and maintain certain important agreements made 
with foreign countries, the discount quoted to dealers applies only to the sale 
of Victor talking machines, records, and supplies to users in the United States 
of America. Our dealers must exert all due caution to guard against the 
evasion of this clause. A violation of this clause will constitute a good and 
sufficient ground for forfeiture of this agreement at the election of the Victor 


6. Dealers must cooperate in absolute good faith with the Victor Talking 
Machine Company and inform them direct of any person or persons, either in 
their locality or at a distance, who, not being entitled to them, are enjoying our 
discounts. Also they must inform us direct of any other dealer who is not living 
up to the contract system. The above cooperation for our mutual good is 


• 7. All Victor talking machines, records, horns, sound boxes, and supplies, as 
before stated, are covered by United States. patents, owned and controlled by 
the Victor Talking Machine Company, and are sold subject to the foregoing- 
mentioned conditions. Upon the breach of any of these conditions the license 
to sell or use said Victor talking machines, records, sound boxes, horns, and 
supplies shall cease and terminate immediately, without notice, and the 
vender and the user of same becomes at once an infringer of said patents and 
may be proceeded against for infringement of any of the said patents and for 
injunction and damages, etc., or both. No variation of these terms and condi- 
tions authorized by any employee of the Victor Talking Machine Company will 
be valid unless first ratified in writing by its president or secretary. 


8. The validity of the patents of the Victor Talking Machine Company under 
which the said goods are manufactured and sold is hereby expressly admitted 
upon the acceptance of the terms of this contract, and it is distinctly and ex- 
pressly understood and provided that the party accepting the terms of this 
contract will not, in the event of the breach of the contract or any termination 
of the contract, hereafter contest the validity of any of said patents of the 
Victor Talking Machine Company under which the said goods shall be or shall 
have been manufactured or sold. 


9. The Victor Talking Machine Company shall have the right, and reserves 
unto Itself the right, to terminate this contract at any time for cause, or other- 
wise, notice of the termination of said contract to be forwarded by mail, in 
writing, by the Victor Talking Machine Company, to the last known address 
of the party or parties accepting this contract, the said termination and annul- 
ment of said contract to take effect at once. It is distinctly understood and 
agreed, however, that at any such termination, or any termination of this 
contract, can not relieve the dealer or party operating under this contract from 
any liability to the Victor Talking Machine Company which occurred or accrued 
during the existence of the contract. 


10. In the event of any termination of said contract by reason of the breach 
of any of the conditions by the party accepting the contract, damages for the 
same, shall, at Xlw election of the Victor Talking Machine Company, be esti- 
mated $50, which the party accepting the contract hereby covenants and agrees 
to pay as liquidated damages; the Victor Talking Machine Company may, how- 
ever. If it so elects and can so establish, prove actual damages to a greater 
amount, and be entitled to recover the same. 

39207—08 14 



11. It is understood that this agreement is to take the place of any prior 
existing agreement between the parties bearing npon the subject-matter as 
covered in, or provided by, this agreement. 

12. It is expressly understood that in the event of any breach of any of the 
terms or conditions of this agreement by the party accepting the same, the 
Victor Talking Machine Company, in addition to its other rights, may place and 
publish the name of said party upon its suspended list. 

This agreement is personal to the party accepting the same, and Is not trans- 
ferrablc or assignable. 

VicTOB Talking Machine Ck>MPANY. 
Camden, N. J., U. S. A. 

Dealers* Agreement — ^Acceptance. 

In consideration of the right to purchase Victor talking machines, i>art8 
thereof, records, sound boxes, horns, and supplies from the Victor Talking 
Machine Company, or their authorized distributors, at the regular dealers* dls-, 
count provided in the foregoing agreement, for the purpose of vending in the' 
United States of America, I hereby accept all the terms and conditions provided 
in the foregoing, and covenant and agree to faithfully perform all the said 
conditions and terms and to observe the said list prices, discounts, and terms, 
as well as other i^rlces and terms that may be established from time to time by 
the \'ict(>r Talking Machine Company, ui)on such patents, sizes, or styles of their 
wares as may hv iiitrodnc(»d or marketed by them, and to conform to and adhere 
strictly and to be govorned by the same, the right of the Victor Talking Machine 
Ccmipany at any and all times to establish and change such new prices on all 
its manufactures in the bands of dealers or distributors, as well as on those 
hereafter to be mauufactured or sold by it, being hereby admitted. 

It Is (listinetly understood that this agreement grants no exclusive agency or 
territtn-y to the undersigneil, and that any violation of any of the conditions or 
terms nientloninl In the foregoing clauses will justify the Victor Talking 
Machine (Nniipany, among other things, to at once cut off the supply of goods 
and place the undorsignc»d ui)on the snsi>ended list. 

Hate , 11X>— . (Signed) , |seal.1 

Witness: Street and number 

- City. 


Retail Dealkrs' Prick List. Discounts, Net Prices, Terms, Conditions or 
Sale, and Agreement for United States of America. — Edison Phono- 
graphs, llECORDU, AND BLANKS. 

(Subject to change.) 


Any dealer desiring to handle our apimratus must place an Initial order for 
at least tlinH? machines, each of a different style, and 150 records. In addition, 
he must have an estahlishcnl store suitable to dl8pla3' and handle our goods, 
and at all times carry a sufficient st(K*k for exhibition and sale puriK)ses. 


All Pxlison I )li( Olographs, re<H)rds, and l)lanks are sold at Orange, N. J., under 
the li(*ens<> of Thomas A. tMison, tlie F>1ison Phonograph Company, and others, 
subj(>4*t to the following eonditi<ms: 

1. Ketail dwilers must not give away or sell or offer for sale, either <IIrtM*tly 
or indlreclly, Kdison i)honograi)hs or iMirts thereof, records or blanks at a 


discount, or at less than current list prices, nor to dealers who are on our 
suspended ]ist, nor include with a machine at list price any extra material or 
supplies not listed to go with same as a regular outfit When other goods are 
iucludcHl with an Eklison phonograph or records and are advertised or sold as 
an outfit at a special or fixed price, the price of the phonograph or records, or 
both, also of each and every other article In the outfit, not listed as part of the 
regular phonograph outfit, must be given and must be the same whether In- 
cluded in an outfit or sold separately. Edison phonographs or parts thereof, 
records or blanks must not be disposed of as premiums, not by lottery, raffle, 
or any game of chance, nor In any other way whereby any person or persons 
may acquire such goods for less than the full current list price. 

2. (jiving away or selling other goods at less than current prices or giving 
away trading stamps or premiums of any kind in order to induce the sale of 
Edison phonographs or parts thereof, records, or blanks will be a violation of 
the conditions hereof. 

3. All Edison phonographs bear a serial number; all Edison records are 
boxod and ticketed with copyright and registered tickets and labels, and any 
retail dealer selling or offering for sale an Edison phonograph, the serial num- 
ber upon which has been removed or changed, or an Edison record without 
the copyright and registered label and ticket, infringes the patents under 
which such phonographs and records are sold, and will be considered as having 
violated his agreement. 

4. Exchanging Edison phonographs, or parts thereof, records, or blanks, in 
wli^le or in i)art payment for advertising privileges, or for goods of some other 
make or nature, or the acceptance of goods or merchandise of other make or 
nature in whole or part payment for Edison phonographs, or parts thereof, 
records, or blanks, is contrary to the conditions hereof. This does not pro- 
hil>it the acceptance of a talking machine at full list price. If good as new (or 
loss cost of necessary reiiairs to make good as new), in exchange for an Edison 
phonograph sold at full retail list price, but does prohibit the acceptance of 
records or blanks of any kind, at any price. In exchange for Edison phono- 
graphs, i^ccords, or blanks. 

5. The selling or offering for sale of Edison phonographs, or parts thereof, 
records, or blanks that have become shopworn, or in any way damaged, ©r have 
been taken in exchange as second-hand phonographs, or parts thereof, records, 
or blanks, at reduced prices will be considered a cutting of prices and will not 
i)e allowed. 

0. Exchange between dealers. — Authorized dealers in case of emergency will 
be allowed to borrow from any authorized dealer, provided the goods so bor- 
rowed are actually replaced with goods of the same style and make. In case a 
sjile takes place between two dealers it must be at full list prices. 

7. Edison phonograi)hs, or parts thereof, records, and blanks are sold to job- 
bers and dealers in the United States with the express reservation that such 
goods shall not be sold to. Jobbers or dealers outside of the United States, nor 
for export from the United States except at full list price. 

8. Dealers violating any of the above conditions or falling to pay accounts due 
the National Phonograph Company may be at once cut off from any further 
supply of goods and placed on the suspended list. 

9. All Edison phonographs, records, and blanks are covered by United States 
I)atents and are sold under the condition that the license to use and vend them, 
implied from such sale, is dependent on the observance by the vendee of all the 
foregoing conditions; upon the breach of any of said conditions the license to 
use or vend said phonographs, records, and blanks immediately ceases, and any 
vendor or user thereafter becomes an infringer of said patents and may be pro- 
ceeded against by suit for injunction or damages, or both. 

10. No variation of these terms and conditions and no representations or 
agreements made by any employee of the National Phonograph CJompany will 
be valid unless ratified in writing by its president or secretary. 


In oousidoration of the sale of Edison phonographs, records, and blanks to me 
at current retail dealers* net prices and discounts by Jacot Music Box Company, 
Now York City, and after carefully reading the above price list, discounts, net 
inicos, tonus, and conditions of sale, I hereby agree with the National Phono- 
graph Company to conform with and adhere strictly to and be bound oy the 


same ; and I hereby recognize and acknowledge the validity of the several pat- 
ents under which such goods are manufactured. I also understand that this 
agreement gives me no exclusive rights whatsoever either as to agency or 


Price-Maintenance Contract. Jobbers. 

notice to purchasers of ** columbia " graphophones, records, and blanks. 

All *' Columbia '* graphophoues, records, and blanlcs are manufactured by the 
American Graphophoue Company under certain patents, and licensed and sold 
through its sole sales agent, The Columbia Phonograph Company, General, sub- 
ject to coudltlons and restrictions as to the persons to and the prices at which 
they may be resold by any pefson into whose hands they come. Any violation 
of such conditions or restrictions makes the seller or user liable as an infringer 
of said patents. 


1. Jobbers shall be entitled to current Jobbers' discounts as long as they 
purchase Columbia product to an amount aggregating |5,000 eiich year follow- 
ing the date of signing this agreement. 

2. Jobbers must not sell or offer for sale at wholesale or supply or place oo 
consignment, either directly or through any intermediary, to dealers Columbia 
graphophoues or parts thereof, records, or blanks at better discounts than those 
authorizetl by The Columbia Phonograph Company, General ; nor shall they 
allow iiiiy discount whatever from list i)rices, either directly or through any 
intermediary, to deaU'rs on the su8i)ended list, or to any person or persons who 
have not an established shop or suitable place in some established shop allotted 
to a proi)er display of siild go<xls, and who, having such, will not purchase at 
least two Columbia graphophoues, each of different style, and at least 150 
Columbia XP records, or 100 Columbia 10-lnch disk records, to establish them 
as dealer or dealers, and sign and comt)Iy with the required price maintenance 

S. Jol)hers must forward within ten days of signing to the Columbia Phono- 
grai)h Company, (Jeneral, New York City, the required price maintenance agree- 
ment proi>erly dated and signed, before a witness, by all dealers established by 

4. Jobbers must keep a record of the serial numbers of all Columbia grapho- 
phoues sold by them to dealers and send a copy thereof to The Columbia Phon- 
ograph Company, (ieneral, at any time \\\h>i\ request. 

5. Columbia graphophoues or parts therw)f, records, and blanks are sold to 
jobl>or8 and dealers in the United States, with the exi)res8 reservation that such 
goods shall not be sold to jobbers and dealers outside of the I'nlted States, nor 
for exi>()rt from the Vnited States except at full list price. 

C. Jobbers violating any of the conditions herein stated or' failing to pay ac- 
counts to the Columbia Phonograph Company, General, may be at once cut off 
from any other supply of goods and placed on the susiiended list. 

7. After reading the foregoing notice and conditions of sale, and after reading 
the Columbia Phonograph Company, (leneral's, list prices, discounts, and net 
prices, and being fully Informed in regard thereto, and In consideration of trade 
discounts given to me by the Columbia Phonograph Company, General, I hereby 
agree to take any giMKls received by me from said comimny, either directly or 
through any Intermeillary, under the ccmditions and restrictions referred to In 
said noti(*e, and, excei)t In case of sales to bona fide retail dealers, as hereinafter 
provided for. I agret* to adhere strictly to and to be bound by the official list prices 
establlshtHl from time to time by said comimny, and that I will neither give 
away, wll, offer for wile, nor In any way dlsi>ose of said goods, either directly 
or thnnigh any InternuHliary, at less than such list prices, or Induce the sale of 
such gJMKls by giving away or reducing the price of other goods. I further 
hereby agrc»e not to sell or supply said goods or any part or imrts thereof, either 
directly or through any Intermedin r3% at less than said official list prices to any 
but bona fide retail dealers, and not until they have first signed said company*s 
prcHcrllKHl price-maintenance contract, governing and controlling sales by retail 
dealers, and in such sales I agree to adhere strictly to and to be bound by the 
official discounts established from time to time by said company, and that our 


discounts to said dealers shall not exceed those of said company on equal quanti- 
ties and under the same conditions. I also agree not to sell to dealers on said 
company's suspended list or continue to sell to a dealer if he cuts prices or dis- 
counts, and I understand that a breach of this agreement will amount to an 
infringement of said patents and subject me to a suit and damages therefor. 

I acknowledge the receipt of a duplicate of the foregoing notice and contract, 
and also a copy of the official list prices and discounts of said company in 
force at the date hereof. 

No representations or guarantees have been made by the salesman on behalf 
of the said company, which are not herein expressed. 

Dated , 190—. 

Witness: . (Signed) 

Business : . Street and No. 

City: , State: 

Mr. BuRKAN. I also offer in evidence the case of the Edison 
Phonograph Company v. Pike (116 Fed. Kep., 863); also the case 
of the Edison Phonograpli Company v. Kaufman (105 Fed. Rep., p. 
960) ; also the case of the Victor Talking Machine Company v. The 
Fair (123 Fed Rep., 424). All of these were suits in which injunc- 
tions were granted restraining dealers and consumers from selling 
these patented devices for less than the price fixed by the trust. 

I hold in my hand an agreement between the Victor Talking Ma- 
chine Company and The American Graphophone Company, dated 
the 8th of December, 1903, by which agreement it is agreed that: 

When any of said patent or patents shall be so adjudicated as valid, that 
the pnrty owning or controlling such patent or patents will, with due diligence, 
actively proceed against all infringers of the said patent or patents to enjoin 
such Infringing parties from said infringements and for an accounting when re- 
quested in writing to proceed against any such alleged Infringements by the 
other party hereto. 

It is further agreed that neither party to this contract shall copy or repro- 
duce in any manner any records owned or controlled or first produced by the 
other party, nor >vlll they deal in or handle in any way whatsoever such copies 
if made by others, and that they will cooi)erate to secure a discontinuance of 
such acts on the part of others and to secure legislation making it illegal to 
copy or counterfeit records, 11 it shall be found that the present laws do not 
cover the case. 

So we find that these two companies, apparently rivals in busi- 
ness, have joined hand in hand to keep any third party from enter- 
ing this most lucrative field. I sav to you that if you pass this 
bin no man can get into this field of manufacturing records, because 
of these 300 patents which cover every conceivable improvement 
the human mind can invent. 

The Chairman. You do not think that all of the improvements 
in this particular line of business have been discovered, do you? Do 
you not think there will be patents coming right along, and that they 
will be perfected as time goes on? 

• Mr. BuRKAX. Yes; but the moment a rival enters the field you will 
find, if you will look at the record in the Fedeft^l Reports, that he 
is oppressed with litigation and is driven out of business. He can 
not continue in business because of the claims they make that he 
has infringed their patents. The entire field in this country is under 
their absolute control. 

Representative Currier. How do they put him out of business? 

Mr. BuRKAN. Bv injunction. 

Representative Currier. How do they get their injunction until 
they have had their case adjudicated? They do not get an injunction 
until they have had an adjudication. 


Mr. BuRKAN. No; I do not say that, but the bringing of these 
actions against any individual by the various companies is sufficient 
to oppress and drive a man out of business ; so that no man to-day 
would dare to go into this business with knowledge of the fact that 
if he attempt to invade this field he will be pursued by litigation. 

The Chairman. It is not very expensive, if you have a case in the 
Patent Office, to carry your patent from the examiner to the examiner 
in chief and from the examiner in chief to the- CJommissioner of Pat- 
ents, and from there to the .court of appeals of the District of Col- 

Mr. BuRKAN. It might not be expensive in the Patent Office, but 
it is mighty expensive when you are brought into a United States 
court when you must appear before a master and made to summon 
experts to testify about tliese matters. The expert, as a rule, has to be 
paid about a hundred dollars a day, and you will find after six months 
or so of testimony taking that it is rather expensive. 

The Chairman. That is not the case in the Patent Office?. 

Mr. BuRKAN. I am talking about the litigation in the courts. 

Representative Legare. \on say there are only three concerns 
manufacturing these records? 

Mr. BuRKAN. Yes. 

Representative Leoare. And you want us to so legislate that there 
will be only one concern ? 

Mr. BuRKAN. No, sir; I do not. 

Representative Legare. That is your proposition. 

The Chairman. You are not arguing this matter on the supposition 
that the committees are in favor of a monopoly, are you? 

Mr. BuRKAN. I propose to show that this is the greatest monopoly 
in this country, ana that in dealing with this proposition these people 
and their methods and their sincerity in the cry of "monopoly" 
should l)e considered when you come to pass upon this legislation. 

The CiiAiR.MAN. If there is any legislation which we can pass that 
will prevent a monopoly by the Victor conipanv or any other com- 
pany, that is what we are going to do. 

Mr. Bi'RKAN. Yes; and 1 am in favor of that. 

Representative Cikrier. Do you think we will cure this monopoly 
by building up another? 

Mr. BiTKKAX. No; I do not. I am simply going into the good 
faith of these people in their opposition to this legislation. Let me 
call your attentitm again to the last provision of this contract which 
I read a moment ago, and which provides that neither party to this 
contract shall copy or reproduce in any manner any records owned 
or controlled or first i)r()duce(l by the other party, nor will they deal 
in or handle in any way whatsoever such copies if made by others, 
and that they will cooperate to sc^cure a discontinuance of such acts 
on the i)arts of others, and to secure legislation and make it illegal 
to coj>y or counterfeit records, if it shall be found that the j)resent 
laws do not covit the cas(». 

And so thes(», people, although they abuse us for asking you to make 
it illegal for anyone to take a composer's composition without com- 
pensation, have entered into an agreement to come before Congress 
and ask it to make it unlawful for any other company who is desirous 
of doing so from manufacturing records copied from those records 
controlled by the trust. What is actually copied is not the physical 


record, but the composition embodied therein. They tell you that 
they have the right to copy Victor Herbert's compositions and sell 
them for profit in the form of phonograph records and to refuse to 
pay him a royalty for that right, but that it is unlawful for any other 
manufacturer to copy the very same compositions from those records 
or place upon them what is contained therein. That shows the fair- 
ness of my friends on the other side. It's a case of whose ox is being 
gored. They tell you that if you pass this legislation you are goin^z 
to create a monopoly in this inoustry, because one company wiu 
acquire the exclusive reproducing rights from every composer in the 
country. I desire to acquaint you gentlemen with the fact that but 
one company sells records known as the Caruso record — that is a 
record reproducing songs rendered by the famous tenor^ Enrico 
Caruso — and also with the fact that the V ictor Talking Machine Com- 

Sany has made an exclusive contract with Mr. Caruso and Madame 
lelba for the exclusive right to put on their records the compositions 
rendered or sung by them, and yet we find that the Columbia Phono- 
graph Company and the Edison Company are going along splendidly 
and thriving. These companies have not shut down or gone out of 
business because the Victor Talking Machine Company enjoys a 
monopoly in the manufacture and sale of these popular records. 

I propose to show you further that the company known as the 
Zonophone Company, a subsidiary company of one of the three 
described by me, sold a record which was prepared by Madame 
Tetrazzini, the famous sin^r, which it sold to the public for 75 cents. 
When Madame Tetrazzini came to New York and created such a 
tremendous furore, the Victor Talking Machitie Company then pro- 
ceeded to monopolize her services, entered into an exclusive contract 
with her, and raised the price of records made by her to $3 ; and j^et 
that company tells you that these composers and publishers, who are 
simply battling for right and justice and to be compensated for their 
efforts, are coming here with the idea of creating the greatest monop- 
oly in this country. 

The Chairman. I do not think they stated that they were opposed 
to monopolies, because not long ago I noticed an advertisement with 
Mr. Sousa's picture over it, and the advertisement claimed that they 
had an absolute monopoly of the music and marches composed by Mr. 
Sousa, so that they advertise that they do have a monopoly. 

Representative Legake. I understand that Mr. Herbert's band and 
Mr. Sousa's band j)lay for these companies. i 

Mr. BuRKAN. \ ou are mistaken about Mr. Herbert's band. I re- 
member an action started in the New York State courts a number of 
years ago to restrain the Universal Talking Machine Company from 
selling records which they advertised were played by Victor Her- 
bert's band. Victor Herbert's band has never played for these com- 
panies, and yet, for the purpose of creating a demand for their wares, 
they labeled each record as played by '• V ictor Herbert's band." I 
applied for the injunction and it was granted. Mr. Pettit opposed 
me in the application, and he is here now. 

Representative Legare. Did his band ever play for any talking 
machine company ? 

Mr. BuRKAX. It did appear that w^hen Mr. Herbert was in Phila- 
delphia with his orchestra a number of years ago, several of his men 


asked for permission to go to the headquarters of the Victor Talking 
Machine Company for the purpose of making a little extra money by 
playing for records, and tnat they played several selections, which 
were labeled as played by Mr. Herbert's orchestra ; but Mr. Herbert 
never got one cent for it. 

Mr. PETTrr. We understood that his band was authorized to play 

Representative Legare. He permitted them to do it; and they 
played selected pieces. 

Mr. BuRKAN. Yes; those men played those pieces because they 
knew them and knew how to properly interpret them. 

Representative Legare. What company is this Universal Talking 
Machine Company? 

Mr. BuRKAN. That is the Victor Talking Machine Company. 

Mr. Pettit. Of course we do not admit that. 

Mr. BuRKAN. It is announced in this advertisement of the Tetraz- 
zini record, which reads, " Tetrazzini on the Victor." 

Another triumph for the Victor! 

The great soprano, who has saccesses in the operatic history of America, 
has been added to the Victor's ''exclusive" list of celebrated grand opera 

In securing the exclusive services of Mme. Tetrazzini, the Victor comiwny 
has again demonstrated its foresight and enterprise. 

There is already a large demand for Tetrazzini records and the sales will 
be increased by our extensive advertising. 

Every Victor dealer ought to grasp this opportunity immediately. If you 
have not ordered Tetrazzini records, do so without delay — ^and be sure to 
order in quantities large enough to satisfy the demands that will certainly be 
made upon you. 

Write to your distributor for special list of Tetrazzini records. 
VicTOB Talking Machine Company. 

Camden, A\ /. 


Canadian f)istributor8. 
For best results use only Victor needles on Victor records. 

So that the moment they acquire the exclusive services of Madame 
Tetrazzini they increase the price of the records manufactured by her 
from 75 cents apiece to $3 apiece. 

Representative Barchfeld. And that was in the interest of the 

Mr. BiRKAN. Yes, sir. 

The Chairman. It might have been done in this way; That her 
voice, when she came over here, became very popular with the Ameri- 
can p(M)j)le, and that popularity might have placed her in a position 
wh(Tel)y she could have demanded more from the Victor talking ma- 
chine to sing into their machine. I rather think that is the fact. It 
is the same as if the Victor talking machine would pay Mr. Herbert a 
great deal more for his band to play for it than for a common country 

Representative Barchfeld. I just want to call attention to the fact 
that this was in the interest of the public. The Victor Company get 
the contract that is absolutely exclusive, and that raises the price 
from 75 cents to $3, for the benefit of the public. 

Mr. BuRKAN. I have here an advertisement issued by the Victor 
company, in which the records of Madame Tetrazzini are advertised 


as zonophone records, the 9-inch records at 75 cents and the 11-inch 
records for $1.25, while I have also a pamphlet in which they adver- 
tise the same thing for $3 immediately after siting the so-called ex- 
clusive contract. I offer these pamphlets in evidence. 

The Chairman. I want to say that is just exactly what we want to 
avoid in this legislation. 

Mr. BuRKAN. Yes, sir ; that is what you are here for. 

The Chairman. We do not want to give anvbodjr a monopoly, and 
we want to provide in this bill that any manuiacturing company may 
reproduce by mechanical devices the music of any composer by pay- 
ing a stipulated royalty, and then we will have competition, and tne 
American public will have the chance to buy at the lowest possible 
price at which the records can be made. 

Representative Barchfeld. I want him to continue on this line of 
argument with reference {o the songs of the Italian singer, selling 
for $6— the Caruso records. 

Mr. BuRKAN. In discussing this proposition I desire to refer for a 
moment to Mr. Herbert's argument, with reference to the artistic 
supervision of his work. No record which is prepared by Caruso 
leaves the shop of these people until Mr. Caruso has heard the record 
and is satislBed it is an exact reproduction of his voice. He can not 
afford to have anything go out to the public unless it is an actual re- 
production of the selection he has rendered. Now, here is a record 
which was prepared by Mr. Caruso, and which is. sold for $2. They 
charge you $2, because Caruso sang for that record, and for another 
composition by the same composer they charge you $1, because they 
did not pay Mr. Puccini, the composer, any royalty. Just as Caruso s 
or Tetrazzini's voice make the record a commodity of value, so does 
the composition of the composer. Without the composer Caruso or 
Tetrazzini would not have anything to sing. 

They pay Mr. Caruso a royalty for every Caruso record they make, 
and wny should they not pay the composer. Puccini, who composed 
the song that enabled him to sing for the Victor record, is an Italian, 
and under the laws of Italy a composer of music is entitled to a roy- 
alty upon each and every record manufactured and sold, just as Mr. 
Caruso is entitled, under his contract, to a royalty. They can not get 
Mr. Caruso's voice for nothing, and so they have got to pay him, and 
why should they be permitted to get Mr. Puccini's composition, which 
enables him to sing this record, for nothing? 

The Chairman. That is not the position taken by the English law, 
is it? 

Mr. Burkan. Under the English laws, as they stand to-day, the 
composer is in the same position as he is in this country ; that is, he 
is not protected. I ought to say that Mr. O'Connor, who is responsi- 
ble for the copyright bill introduced in England in 1906, told me 
that he was drafting a bill similar to that introduced in this Con- 
gi'ess, prepared by Senator Kittredge and Representative Barchfeld, 
which will protect the composer in his property. 

The Chairman. You know that the last law that was passed in 
England not only goes further than this bill, and specifically states 
that the act shall not apply to phonogjraphs or talking machines. 

Mr. Burkan. The musical copyright act which was passed in 
England in 1906 deals only with one subject and that is the subject 


of seizure and punishment in the case of musical piracy. Mr. 
O'Connor was persuaded to introduce a bill which simply covered 
musical piracy, and this musical piracy law contains very severe 
criminal provisions, authorizing summary punishment of persons 
^ilty of counterfeiting or dealing in counterfeit music; also author- 
izing the arrest without a warrant of street venders of pirated music, 
and authorizing the searching of premises and the seizure and 
destruction of pirated copies. The mechanical people appealed to 
Mr. O'Connor and said to him: " You don't want us to be placed in 
the same position as these pirates." So, in accordance with their 
wishes, he inserted a provision that this musical piracy act should not 
apply to phono^aphs or talking machines. But the general musical 
act, which was in force at the time this bill was passed, is still the 
law of England. 

The proposition that my friends are g5ing to urge in opposition 
to this legislation is that the iEolian Company has entered into cer- 
tain contracts with a number of musical publishers, the purpose of 
which is to create a monopoly. 

I have been over this ground before, but I think that I ought to 
take this matter up for the benefit of the new members of this com- 
mittee. The facts are that in 1889 a suit was started in the circuit 
court of Massachusetts for the purpose of preventing the manufacture 
of perforated rolls to be used on an instrument called the " Organ- 
ette," on the ground that the rolls were copies of complainant's copy- 
righted composition. The court decided that a perforated roll was 
not a copy within the meaning of the copyright statute. The case 
was appealed but thereafter abandoned, and the case never got to the 
Supreme Court of the United States, because the parties failed to 
print their papers in accordance with the statute. 

Another action was then started, several years thereafter, in the 
District of Columbia, the object of which was to restrain the manu- 
facture of phonograph records, on the ground that they infringed 
the author's copyright. The court there decided that a phonograph 
record was not a copy of a musical composition within the meaning 
of the act. 

In 1891 the international copyright act was passed, but no specific 
language was used in that act covering these devices. We then find 
that a company called the iEolian Company, a pioneer in the in- 
dustry of manufacturing perforated rolls, which had invested a 
great deal of money in this industry, had been advised that there 
was serious doubt about whether a perforated roll was a copy within 
the meaning of the law, and that the question ought to be tested by 
bein^ taken to the Supreme Court of the United States. And so this 
^olian Company called on several publishers and had them sign a 
contract which provided that the ^liJolian Company, at its own cost 
and expense, should cause a suit to be brought m some of the circuit 
courts, for the purpose of testing the applicability of the present law, 
upon the question as to whether a perforated roll was a copy of a 
musical composition, within the meaning of the copyright act. 

The Chairman. Just put those contracts in the record at this 
point. I suppose you have them all here. 

Mr. BuRKAN. Yes, sir. 


The contracts referred to are, by direction of the committee, in- 
serted in the record, and are as follows: 

Memorandum of agreement, made and entered Into this 2l8t day of April, 
1902, by and between Carl Fischer of New York in the State of New York, party 
of the first part, hereinafter called tHe publisher, and the .^Eollan (Company, a 
corporation organized under the laws of the State of Connecticut, and having 
a place of business in the city of New Y'ork In the State of New York, party of 
the second part, hereinafter called the -^ollan Company, witnesseth : 

That whereas the parties hereto have, of even date herewith, entered into 
an agreement whereby the .^olian Company is to have the exclusive right for 
all perforated music sheets intended for use In controlling automatic musical 
instruments or machines for playing musical instruments, in and to the copy- 
righted musical comiK)sitlons of which the publisher Is the proprietor or as to 
which he is the owner of any rights, and In and to all those other musical com- 
IK)8itlons which may hereafter be protected by copyright and the copyrights or 
rights in which may be acquired by him; and ** 

Whereas the parties hereto are desirous of entering Into a further agreement 
with reference to the matters and things expressed in the above-mentioned 
agreement of even date herewith : Now, therefore. 

The publisher, for and In consideration of the premises and the sum of $1, 
lawful money of the United States, to him by the -^ollan Company In hand 
paid, receipt whereof Is hereby acknowledged, does hereby covenant and agree 
•that no charge shall be exacted from or be due from the ^ollan Company for 
the manufacture or sale by It, or any of its customers, of any perforated music 
sheets of either of the kinds aforesaid for playing any of the copyrighted 
musical compositions which are owned or controlled, or which shall hereafter 
be owned or controlled In whole or In part by the publisher, until a decision 
of the court of last resort In a suit which Is to be Instituted against some 
manufacturer or user other than the .^ollan Company of such perforated music 
sheets, and not then unless such decision shall uphold the applicability of the 
Ignited States copyright laws to such i)erf orated music sheets, and not then 
unless such decision shall uphold the applicability of the United States copy- 
right laws to i>erforate<l music sheets of the kinds aforesaid. 

And for and in consideration of the premises the ^^ollan Company hereby 
covenants and agrees to pay all proiier exi)enses of conducting said suit for 
the puri)08e of testing the applicability of the United States copyright laws to 
perforated music sheets of the kinds aforesaid, and that If the court of last 
resort shall in such suit decide that the United States copyright laws are appli- 
cable to such perforated music sheets, then and In such case and from that 
time forward the ^Eolian Ck)mpany will keep books of account, render state- 
ments and pay royalties as provided by the aforesaid agreement of even date 
herewith, but shall be free from obligation to make payments for the past. 

And it is mutually understood and agreed by the parties hereto that neither 
party hereto is to be obllgateti in any way by any of the provisions of this 
agreement, or of the aforesaid agreement of even date herewith, until the 
.^^ollan Company shall notify the publisher that a number of copyright owners 
satisfactory to the .Eolian Company have made similar agreements with said 

And the parties hereto mutually covenant and agree that all the provisions of 
this agreement shall be binding u|)on and hiure to the successors, executors, 
administrators, and i)ersonal rei)resentatlves of both the parties hereto. 

In witness whereof the publisher has on the day and year first hereinabove 
•written hereunto set his hand and seal, and the .IColian ('ompany has caused 
its name and coriwrate st»al to l)e hereunto affixed by its proiHjr othcer thereunto 
duly authorized. 

Thk .1^]olian Co. [l. s.] 
Carl Fischeb, [l. k.] 
By E. S. VoTEY, 

Director and Attorney in Fact 
Witnessed by — 


J. F. Bowers. 

Memorandum of agreement made and entered Into this 21st day of April, 1902, 
by and betwet»n Carl Fischer, of New York, In the State of "tl^^ X.q\V.^ x^xV-^ ^*^ 
the first part, hereinafter called the publlaher, aivd Wife 2Eio\\».xi e.c^m\«cwg , -a. oss^- 
poratJow organ Izeil under the laws of the State ot CouTieeWewX., «.w^ VsnnNs^'** ^ 


place of business In the city of New York, in the State of New York, party of 
the second part, hereinafter called the iEolian Company, witnesseth : 

That whereas the publisher is the proprietor of certain copyrights for musical 
compositions and the owner of rights in copyrights for other musical composi- 
tions; and 

Whereas the iSk>llan Company is engaged in the business of manufacturing 
and selling automatic musical instruments controlled by perforated music 
sheets, and in manufacturing and selling machines for playing keyboard musical 
instruments, which machines are controlled by perforated music sheets, and in 
manufacturing and selling perforated music sheets for such automatic musical 
Instruments and machines; and 

Whereas the.^k>]ian Company is desirous of acquiring the exclusive right for 
such perforated music sheets in and to all the copyrighted musical comi)osition8 
of which the publisher is the proprietor, or as to which he is the owner of any 
rights, and of all those other musical compositions which may hereafter be pro- 
tected by copyright and the copyrights for which or rights in which may be 
Acquired by him; 

Now, therefore, the publisher, for and in consideration of the premises, and 
of the sum of $1, lawful money of the United States, to him paid by the .lik>lian 
Comi>any, receipt of which is hereby acknowledged, and for and in consideration 
of the true and faithful performance by the ^^olian Coniimny of its covenants 
hereinafter made, does hereby sell, assign, transfer, and set over unto the 
jEolian Company the exclusive right for all i)erf orated music sheets of the kinds 
aforesaid in and to all the copyrighted musical conu)ositious of which the pub- ■ 
Usher is the proprietor, or in the case in which he Is the owner of any less rights 
to the extent of said rights, and does hereby covenant and agree with the i¥k>lian 
Comimny to give and seinire to it the eKclusive right in like manner for all 
I)erforated music sheets of the kinds aforesaid in and to all those other musical 
com|)ositions which may hereafter be protected by copyright, and the copyrights 
or rights in which may be acquired by the publisher. 

And the publisher for the consideration aforesaid hereby covenants and 
agrees, so far as it may be reasonably in his power, to protect the ^Eolian 
Company against any claim of any third person in resiHJct to any and all 
copyrighted musical comi)08itions which may be involved in this agreement 
and the coi)y right of which may be owned by the publisher. 

And the vKolian Company for and in consideration of the premises hereby 
agret»s that it will keep correct and true books of account in which it will set 
down or canst* to be set down entries of all perforated music sheets made by it 
for playing the copyrighted musical compositions owninl or controlled by the 
publisher; that it will on the 20th day of each and every January and July, 
during the continuance of the manufacture and sale by it of the perforated 
music 8li(»et8 for playing such musical comi)08ition8, render unto the publisher 
a correct and tru<? statement of the number, names, and other designations of 
such iH»rforated music sheets sold by it during the six prece«ling calendar 
months, and that at the time of rendering each and every such statement it will 
well and truly pay unto the publisher a license fee or royalty of 10 per cent of 
the list pric(»s made l)y the United States publishers of the printed scores or 
copies of such musical comi>ositions, but never more than 50 cents for any one 
of such perforated music sheets. 

And the partitas hereto mutually covenant and agree that nothing herein con- 
taintHl is to (jbligate the .l^^olian Comimny to pay any license fee or royalty 
uiK>n such |K»rforattMl music shtM*ts as shall be made by it in the United States 
and sold or sliipiKMl to any other countrj', unless it shall have lu^en de<Mded by a 
court of competent jurlsiliction of such other country that the copyright laws . 
of that country shall l)e applicable to i)erforated music sheets of the kinds 
herein mentioncil. 

Ami the parties hereto mutually agre<» and covenant that the term ** |)erft>- 
rated music sheets*' is not to be construtKl as covering the controllers of thost* 
musical instruments which are generally known as phonographs or music boxes 
or hand organs. 

Anything herein to the contrary notwithstanding, at the expiration of thirty- 
five years from the payujcnt of the first license fee hereinbefore provided, the 
-Eolian Company shall not be entitled to licenses under the copyrights thereafter 
acqulrcHl by the pnl)ll8her, l)ut all licenses existing under copyrights theretofore 
acquired by him shall remain In force until the expiration of the terms of the 
copyrights under the terms hereinbefore provided. 


During the existence of this contract after the payment of the license fee 
hereunder, the iEolian Comp«iny obligates itself to prosecute diligently, at its 
own expense and by its own counsel, in the name of the proprietors of the copy- 
right, all infringers of the rights granted to it, the ^olian Company. 

And the parties hereto mutually covenant and agree that all the provisions 
of this agreement shall be binding upon and enure to the successors, executors, 
administrators, and personal representatives of both the parties hereto. 

In witness whereof the publisher has on the day and year first hereinabove 
written hereunto set his hand and seal, and the .lik)lian Company has caused its 
name and corporate seal to be hereunto affixed by its proi)er officer thereunto 
duly authorized. 

Cabl Fischer. \l, s.l 
The JEoLiAN Co. [l. 8.1 
By E. S. VoTEY, 

Director and Attorney in Fact, 
Signature of publisher witnessed by — 


Mr. BuRKAN. The consideration for the making of these contracts 
was the commencement of this action. The contract provides ex- 
plicitly that whatever rights this company gets, it gets by virtue of a 
decision favorable to the publisher and composer in the United States 
Supreme Court. If the Supreme Court decides adversely to the con- 
tention of the -^olian Company, then whatever rights it acquires 
under the contract would depend solely upon the Supreme Court de- 
cision. If the court decided m favor of the public, then the company 
would acquire a right in the publication of the composing publisher 
for a period of years — some for five years, some for ten years, and 
some for twenty-five years. These contracts were made in 1902 and 
the case was started. Governor Hughes appeared for the ^Eolian 

Representative Leake. Does that contract say that it depends en- 
tirely upon a recovery in the United States Supreme Court? 

Mr. BuRKAN. Yes, sir; it expressly says: 

Now, therefore, the publisher, for and in consideration of the premises, and 
the sum of $1, lawful money of the United States, to him by the Aeolian Com- 
pany in hand paid, receipt whereof is hereby acknowledged, does hereby cov- 
enant and agree that no charge shall be exacted from or be due from the 
.l*]olian Com|)any for the manufacture or sale by it, or any of Its customers, 
of any perforated music sheets, of either of the kinds aforesaid, for playing 
any of the copyrighted musical compositions which are owned or controlled or 
which shall hereafter be owned or controlled in whole or in part by the pub- 
lisher, until a decision of the court of last resort in a suit which is to be insti- 
tuted against some manuacturer or user, other than the A^U&n Company, of 
such perforated music sheets for the purpose of testing the applicability of the 
United States copyright iaws to such perforated music sheets, and not then 
unless such decision shall uphold the applicability of the United States copy- 
right laws to perforated. music sheets of the kinds aforesaid. 

So you see the consideration for the agreement was the obtaining 
of a decision of the Supreme Court upholding the contention of this 

The Chairman. If the court had decided the case in favor of the 
iEolian Company, then the contract would have been enforced ? 

Mr. Burkan. Yes, sir. 

The Chairman. And all of the 87 publishers would bo compelled 
to have their perforated rolls cut by the ^Eolian Company ? 

Mr. Burkan. Yes; that is true. That is admitted. The cost of 
this litigation was $15,000, and no one composer could 1^^^^3ks&N»:^. 


It was too expensive. It required the. construction of a great many 
patents and the examination of a great many experts. It was a very 
difficult question. 

Now, the Supreme Court has decided that a composer has no rights 
in the mechanical reproduction of his compositions; that the present 
copyright law is insufficient and does not cover these devices. But 
the court does say : 

The statute has not provided for the protection of the intellectual conception 
apart from the thing produced, however meritorious such conception may be, 
but has provided for the making and filing of a tangible thing, against the pub- 
lication and duplication of which it is the puri)ose of the statute to protect the 

It may be true that the use of these perforated rolls, in the absence of statu- 
tory protection, enables the manufacturers thereof to enjoy the use of musical 
compositions for which they pay no value. But such considerations properly 
address themselves to the legislative and not to the judicial branch of the 
Government. As the act of Congress now stands, we l)elieve it does not include 
these records as copies or publications of the copyrighted music involved In 
these cases. 

Mr. Justice Holmes, in a concurring opinion, says : 

A musical composition is a rational collocation of sounds apart from concepts, 
reduced to a tangible expression from which the collocation can be reproduced 
either with or without continuous human intervention. On principle anything 
that nieolianically reproiiuces that collocation of sounds ought to be held a 
copy, or if the statute is too narrow ought to be made so by a further act, excef)t 
so far as some extraneous consideration of i)olicy may oppose. What license 
may be implied from a sjile of the copyrighted article is a diflferent and harder 
question, but I leave it untouched, as license is not relied ui)on as a ground for 
the judgment of the court. 

The Supreme Court says explicitly that the matter is for Congress 
to detennine. 

The Chairman. That is just exactly what the committee wants to 
detenu iiie, and we want to determine it in such a way that not only 
will the author be protected in some form, but we want the American 
peoph», as a whole, to be also protected. 

Repres(»ntative Legare. Mr. Burkan, just whom do you represent? 

Mr. Burkan. I represent the publishers, and I also represent Mr. 
Victor Ilerbeii:. I have been his counsel for a great many years and 
his interest is my interest. 

Representative Legare. Have you done any work for the ^Eolian 

Mr. BiTRKAN. No ; I never have. 

Representative Legare. Did you ever discuss this nuitter with them 
or their representative? 

Mr. Burkan. Never, sir; except that in this case in the United 
States Supreme Court I submitted a brief in behalf of Mr. Victor 
HerlK»rt, and I was naturally anxious that the court should decide 
in favor of the composer. I have been representing nuisical authors 
and publishers for ^ numlxT of years. 

Represc^ntative Legare. You are here as the attorney for the 
musical publishers, an* vou ? 

Mr. Burkan. Yes, sir; and I also represent Mr. Victor Herbert 
He is the only composer here, and he represents the composers. 

Now, for the purpose of determining the character of the right the 
.Eolian Company would have acquired, we find that 87 contracts 



were ma^e in 1899, and we find that 117 publishers did not sign the 
contract with the iEolian Company. 

The Chairman. Be absohitely fair about this. Docs not the record 
show that the 87 were the principal publishers of the United States, 
with the smgle exception of two? 

Mr. BuRKAN. They were the leading publishers, although I should 
not say that, because Boosey & Co. has one of the largest catalogues in 
this country, and they did not sim any such agreement. 

The Chairman. I Know you oo not want to oe misleading. 

Mr. BuRKAN. No, sir. 

The Chairman. And you do not want to mislead the American 

Mr. Burkan. No, sir. 

The Chairman. Does not the record show, as I said, that the 87 
publishers with whom the contracts were signed were the leading 
publishers of the United States, with the exception of two, who were 
leading publishers ? 

Mr. Burkan. The two were the John Church Company, of Cincin- 
nati, and Boosey & Co. But I have here 117 postal cards of leading 
publishers who did not sign this agreement. 1 also have a schedule 
here showing that they represent 503,596 copyrighted compositions*, 
which were controlled by parties who were in no way, shape, or 
manner connected with the ^olian Company and who signed no 
iigreement wuth it. 

The Chairman. The JEolian Company felt perfectly satisfied that 
they had sufficient contracts signed to force anyone else that was on 
the outside into signing similar contracts if necessary. 

Mr. Bitrkan. I did not quite catch that question. 

The Chairman. Did not the ^olian Company, in a letter to these 
publishers, state that they had a sufficient number of contracts 
already signed? 

Mr. Burkan. Yes, sir; they did. At this point I want to offer in 
evidence this schedule, showing the names of 117 publishers, who con- 
trol 503,597 compositions, who did not sign the agreement. 

The Chairman. It will go into the record without objection. 

The schedule referred to was, by direction of the committee, in- 
serted in the record, and is as follows : 

Publishers who have no contracts. 

Name and address. 

Geo. W. Pager, 12 Union square, New York. 

R. H. Gerard. 51 West Twenty-eighth street. New York 

Minnesinger Music Co., 9025 Madison ayenue, Cleveland 

H. C. Weasner & Co., Buffalo, N. Y 

Thos. Groggan & Bros.. Waco, Tex 

M. A. Reese, music publisher, Kansas City, Mo 

Amphion Music Co.. 261 Wabash avenue, Chicago, III 

N. Y. Music Publishing House. Worcester. Mass 

Chappell & Co. (Limited), 87 West Seventeenth street. New York- 
Sam Fox Publishing Co.. Cleveland. Ohio 

The Dixie Music IIouso. 134 Van Buren street, Chicago 

Monar(?h Music Co.. 328 Dearborn street. Chicago 

Eaglo-Dougherty Publishing Co.. Louisville. Ky 

Wra. L. Garner. 42 Green street, Newark, N. J 

Albert Von Tlizer. 40 West Twenty-eighth street. Now York 

Emanuel Schmank, 41 Union Square, Ne»w York 

Austin S. Benson. Troy, Ohio 

R. Frank Lehman. 1308 Arch street, PhUadelphIa, Pa 










Publishers who have no contracts — Continued. 

Name and address. 

Stark Music Printing and Publlshlnsr Co., 127 East Twenty-third street. New 

H. B. Stevens, 181 West Twenty-third street. New York , 

O. Jacobs-Bond A Son, Ohlcago, 111 

Breltkopf tc Hartel, 24 West Twentieth street. New York 

Essex Music Co., 243 West Twenty-first street. New York 

Geo. Wllllg A Co., Baltimore, Md _ 

TTieo. Lohr, 286 Grand street. New York _. 

Eberle Music Co., 88 West avenue,' Buffalo, N. Y __ 

Henry B. Ingram, 42 West Twenty-eighth street, New York 

O. M. Senseman. 114 Fifth avenue. New York - 

J. P. Bellols, 816 North Ninth street. Philadelphia, Pa _ 

Century Music Publishing Co., 17 West Twenty-eighth street. New York 

Rogers Bros., music publishers, 1620 Broadway, New York 

A. E. Cramer Music Co., Frederick, Md 

Rothermel Music Publishing Co., Stmbury, Pa — 

Orvllle O. Walden, UncasvUle, Conn— 

Ed. W. Miller & Co.. 814 Walnut street. Philadelphia, Pa...^ 

Theo. Bendix, music publisher, 1431 Broadway, New York 

August Weischlnger, 129 East One hundred and twenty-fifth street. New York. 

The Musiclovers Co.. 20 East Forty-second street, New York 

Bates St Bendix. 120 Dartmouth street, Boston — 

Shapiro, music publisher, Broadway and Thirty-ninth street. New York.. 

Hatch Music Co., Philadelphia, Pa 

Fischer & Bro.. 11 Bible House, New York. 

The J. Morris Co., 186 North Ninth street, Phfladelphla. Pa 

Ryder Music Publishing Co., 55 Hawthorne street, Chelsea. Mass 

A. K. De Lcmos, fi.>9 Broad street, Newark. N. J 

The Springfield Music Co., Springfield, Mass 

A. H. Roscwig, 133 South Eleventh street. Philadelphia, Pa 

Koninsky Music Co., 17 King street. Troy. N. Y 

The Temple Music Co.. 110 West Fortieth street. Now York 

Boosey & Co., 9 East Seventeenth street. New York 

Tremont Music Publishing Co., 164 Tremont street, Boston. Mass 

Wm. E. Ashmall, Arlington, N. J , 

Wm. H. Ocrrish, 43 West street, Boston, Mass 

Albert J. Bouvicr. 1636 Pleasant street. Fall River _ 

P. Tesio. 626 Eighth avenue. New York 

J. T. Hall Publishing Co., 1416 Broadway. New York 

B. F. Woof Music Co., 246 Summer street, Boston 

T. H. Harms Co., 1431 Broadway, New York 

Greenville Music Publishing Co., Greenville, Ohio 

Al Chenet & Co., Boston, Mass 

J. R. Hald Co., 2.'>« Wabash avenue, Chicago 

S. M. Chapd & Co., 68 Washington street. Chicago 

Gotham-Attucks Music Co., GO West Twenty-ninth street. New York 

Louis Better Music Co., 8558 Pine street, St. Louis, Mo 

C. C. Colby, Erie. Pa 

P. Benson, 12*25 Washington avenue. South Mlnneai»ol|g. Minn 

John C. Hammond, 30 Music Hall Building, Boston 

Horace Huron. Rock Island. Ill 

G. Selig. f>3 West Twenty-eighth street. New York 

rre<I T. Ashton Co.. Bloomlngton, 111 

Delbert Music Publishing Co.. Terre Haute, Ind 

Stark Music Printing and Publishing Co.. 1516 I.oeust street. St. Louis... 

^ Lovering Publishing Co.. IW Fifth avenue. New York 

^^^iHfSdcnn Music Syndicate, 210 Olive street. St. Louis 

^^Houthern Music Co.. Louisville. Ky 

The John Church Co., 37 West Thirty-second street. New York 

The Fillmore Bros, Co.. 528 Elm street. Cincinnati, Ohio 

Alpha Music Co.. Providence. R. I 

M. H. Andrews. Bangor, Me 

Chas. E. Boat Music Co.. Battle Creek, Mich 

Hazard Music Publishing Co.. 425 West Eighteenth street. New York 

Star Music Co.. El.lrc<l. Pa 

Steinman Co.. 2.'>3 West Thirty-seventh street, New York 

Groves Music Co.. 534 HmithMeld street. Pittsburg 

Emmett & Johns. 84 Adams street, Chicago. Ill 

L. C. Kussner. Chicago, 111 

Jos. E. Frank. Minneapolis, Minn. 

Home Music Co.. 935 Betts street. Cincinnati. Ohio 

The John Church Co.. Cincinnati. Ohio 

Lather A. Clark. Union, Me 

Wm. R. Daughtry, Birmingham. Ala 

The Treloar Music Co.. 820^ Walnut street. Kansas City 

Hatch Musie Co., Philadelphia. Pa 

Zachard 4b Belder. 10 East Seventeenth street. New York 

M. Wltmark 4b Sons, 144 West Thirty-seventh street. New York. 

C. M. Senteman. 114 Fifth avenue. New Y'ork , 

Ben. W. HItchcoek. 49 Eighth avenue. New York 

Da Luxe Muaie Co., 17 Wwt Twenty-eighth street, New York.. 




















. 2.^> 






























































Publishers toho have no contracts — Continued. 


Name and address. 

Conservatory Publishlog Co., 184 West Thirty-serenth street. New York... 

Howard-Witney-Swope, GreenvlUe, Ohio 

Atlas Music Publishers. 1396 North Falrfleld aveDue, Chicago 

Jas. A. Bartlett, 211 East Seventy-third street. New York 

B. P. Wood Music Co., « East Seventeenth street, New York 

Dexter M. Wright, 632 Noe street, San Prandsco 

Allen Music Co., 1 Sboman avenue, Newark, N. J 

John P. Broder, San Francisco, Cal 

H. W. Gray & Co.. 21 East Seventeenth street. New York , 

Francis, Day & Hunter, 16 West Thirtieth street. New York , 

Haekelraan Music Co., Indianapolis, Ind 

A. J. Showalter Co., Dalton, Ga ,^ — . 

P. M. Chapel A Co., 68 Washington street 

M. L. Carlson, 1132 Masonic Temple, Chieago..^.^ 

Wm. Lasslter, Chicago-, 111 

Newton Publishing Co.. 162 Lake street, Chicago, III 

Victor Kremer Co., Chicago and New York.— 

W. L. Thompson, East Liverpool, Ohio — . 

J. T. Brown Co.. 162 Lake street, Chicago, 111 

P. J. Howley (Incorporated). 110 West Fortieth street. New York.. 

Middle State Press. 8 Woodbine place. Salt Lake City 

Qus Edwards Music Publishing Co., 1672 Broadway, New York 




















Mr. BuRKAN. I also offer a schedule of 87 publishers having con- 
trol of 381,589 compositions. 

The said schedule is, by direction of the committee, inserted in the 
record, and is as follows: 

(This paper w^as not furnished.) 

Mr. BuRKAN. The charge that the passage of the copyright bill, 
securing to the composer exclusive rights in his compositions against 
mechanical, reproduction, will create a monopoly in the manufacture 
of automatic musical devices is false. 

The charge is solely based on certain contracts made by the ^olian 
Company with a number of music publishers in the early part of 
1902. It is represented that these contracts were part of a scheme to 
place the -^olian Company in control of the business of making and 
selling automatic musical devices and that the enactment of the pend- 
ing bul is sought in furtherance of the same scheme. 

But these charges and representations are utterly at variance with 
the facts. 

The contracts with the ^olian Company are not calculated to give 
a monopoly to that company, and they were not entered into with any- 
such aim. They were not made in contemplation of any legislation 
such as is now pending, and they would not in any way be strength- 
ened by the passage ox the bill. 

The contracts originated under the following circumstances : 

In 1888, when the manufacture of perforated rolls adapted to re- 
produce musical compositions was in its infancy, the United States 
circuit court, district of Massachusetts, in Kennedy v, McTammany 
(33 Fed. Rep., 584), held that a perforated roll was not a "copy of 
sheet music within the meaning of the copyright laws. This de- 
cision proceeded upon the erroneous theory that the copyright protects 
not the musical composition, but onlv the " sheet of music " on which 
it is printed. An appeal was taken from this decision, but abandoned 
before the argument. This decision was followed and relied upon in 
Stern t\ Rosey (17 App. Dist. Col., 562), that wax cylinders lor use 




in phonographs were not infringements; from which decision no ap- 
peal was taken. . 

Since the rendition of these decisions the manufacturers of these 
devices appropriated without compensation every popular composi- 
tion and reaped enormous profits from the manufacture and sale 
thereof in the form of phonograph records and perforated rolls. 

This was the situation when a number of music publishers were 
approached by the ^Eolian Company with a proposition that offered 
a prospect of eventually securing some compensation for the use of 
musical compositions in mechanical instruments. 

The -^olian Company, the pioneer in this field of industry, had 
invested $10,000,000, we are informed, in the building and eauip- 
ment of plants for the manufacture of perforated rolls. It realized 
that its industry was based upon the appropriation of the composi- 
tions of others without compensation. It was aware of the clamor 
and discontent among publishers and composers against this iniquity. 
Text writers and high legal authorities on copyright (Scrutton's Law 
of Copyright, 4th Ed. Eng. Preface, pp. vi and vii, expressed the 
opinion that a perforated roll or phonograph record was an infringe- 
ment of the composition it was designed to represent. Such was held 
to be the law by the courts of last resort of Germany and Italy. 
Many confidently asserted that if the question were submitted to the 
Supreme Court of the United States, it would, in pursuance of its 
policy of liberal construction in copyright cases, nold perforated 
sheets and phonograph cylinders to be infringements or the com- 
poser's copyrights. In any event, the question was an open one, never 
having been passed upon by the highest court in the land. . 

A (lecision by the Supreme Court in any suit in favor of a com- 
poser would have meant the institution of countless actions by every 
composer and publisher whose compositions were infringed for in- 
junctions, accountings of past profits, and damages. The ^Eolian 
Company would in such a contingency be driven to financial destruc- 
tion. It feared an adverse decision and it realized that it was very 
essential for its welfare and the protection of the investment of its 
stockholders that it should take some precaution against a contin- 
gency of this kind. 

Thie ^Tiolian Company sought to protect itself by proposing to a 
numlx^r of music publishers the agreements now under discussion. 
In these agroenients it offered to assist the publishers, by paying all 
the necessary fees, costs, and expenses, in securing a final aetermina- 
tion bv the Supreme Court upon a thoroughly prepared and well- 
argued case upon the question as to whether the present copyright 
laws are applicable to perforated music rolls. 

The ^l^olian Company made this unusual and seemingly liberal 
offer in order to obtain in return a more valuable concession by the 
publishers waiving all past damages. 

The provision of the contracts dealing with this point, which was 
the real object in making them, reads: 

. And for and In consideration of the premises the -ICoUan Company hereby 
covenants and agrees to \my all proper expenses of conducting the said suit 
for the puriwse of testing the applicability of the TTnlte<l States copyright laws 
to perforated sheets, and that if the court of last resort shall in such suit de- 
cide that the United States copyright laws are applicable to such perforated 


sheets, tlien in sucli case and from that time forward the iEolian Ckimpany 
will keep books and render statements and pay royalties as provided by the 
aforementioned agreements of even date herewith, but shall be free from obli- 
gation to make payments for the past 

By the last line of this clause the ^olian Company protected itself 
against the dangers that threatened its very existence. 

The agreements also provided for the payment of stated royalties 
in the event of the applicability of the copyright laws being upheld 
by the Supreme Court, and in consideration for such royalties the 
iEolian Company was granted the exclusive right to use the pub- 
lishers' compositions for its perforated rolls. 

This proposition appealed to the publishers, as at that time no pub- 
lisher was getting a single penny from the manufacturers for pro- 
ducing his compositions upon mechanical .devices, and the sale of 
sheet music was decreasing as the sale of these perforated rolls 
and phonograph records increased. The publishers jumped at thi^ 
oflfer. Each publisher was naturally anxious to get something for 
his product, which up to that time had been taken away from him 
without compensation. 

To the publisher such a contract was a good business proposition. 
It would mean to a large publisher thousands of dollars if the court 
decided favorably. The publisher naturally, as any other business 
man, wanted to get something for his property, and it was very ad- 
vantageous to get the highest court to decide this question without 
paying the cHormous expense of such a litigation. 

There was at that time no prospect of any legislation being enacted 
by Congress to extend copyright protection to mechanical devices, 
and the only hope lay in a test case carried up to the Supreme Court. 
But such a litigation was not easy, and required the best legal talent, 
besides the employment of a great many experts in the patent and 
musical field. And no single publisher or composer was rich enough 
to carry through so expensive a suit. 

The publishers did not hesitate to sign these contracts. It was 
done openly and above board. The whole world had knowledge of 
the making of the contracts, the terms thereof, and the institution of 
the suit known as White-Smith Company against Apollo Company 
in pursuance thereof, which was decided against the publishers by the 
Supreme Court of the United States. There was no occasion for any 
scheming in the dark, for any conspiracy. There was no thought of 
anything but a plain business arrangement. 

In view of these facts it seems absurd to say that the publishers 
signed the contracts because they were conspiring with the xEolian 
Company to give the latter a monopoly. 

What did the ^^olian Company actually get? 

It ^ot nothing. For it must be very carefully noted that these 
contracts do not go into effect until the Supreme Court decides in the 
case of White-Smith Company v. Apollo Company that the present 
copyright laws are applicable to perforated sheets, and until that 
question was decided favorably the ^5Colian Company acquired no 
rights whatever in the compositions. 

The action of the White-Smith Company having failed in the 
United States Supreme Court, the contracts will become null and 
void. And this result will not be affected by the action of Congress 
on the pending bill. 


The contracts with the .^Eolian Company do not contemplate the 
Hecuring of legislation directly or indirectly. The consideration for 
the contracts was the securing of a decision of the Supreme Court in 
a test case to establish the applicability of the present copyright laws 
to mechanical devices, and upon the failure or that suit all the con- 
tracts must fall. The enactment of legislation securing the same re- 
sult could not resuscitate the contracts. There is no provision of that 
kind to be found in the contracts, and there was no understanding,/ 
express or implied, that on the enactment of any legislation the JEo- 
lian Company should secure any rights under the contracts. 

Even if the White-Smith Company suit succeeded, the ^olian 
Company could not obtain a monopoly of this entire industry of au- 
tomatic devices, as is charged. 

In the first place the contracts are expressly limited to perforated 
music sheets used in operating keyboard musical instruments. 

All other automatic musical devices are not covered by these con- 
tracts, and in most of them it is provided in so many words that they 
shall not Iw construed as covenng the controllers of phonographs, 
zonophonos, music boxes, hand organs, or any other similar musical 

In view of this language what foundation is there for the monopoly 
crv of the manufacturers of phonographs, talking machines, and 
other instruments that are operated by means of disks, cylinders, sys- 
tems of protuberances and the many other devices that can not be 
elasst»d as jH^rforated sheets? 

The chargi> will have to be limited to one branch of the automatic 
musical instrument industry, namely, that of perforated sheets. And 
it has no foundation then*. 

The musical publishers who signed contracts with the ^Eolian 
Company could not give a monopoly of the musical productions 
luvause they did not control them themselves. 

Their a^nHMuoiits weiv undoubtedly sought by the .?Jolian Com- 
pany Uvaust^ they wen* the record owners of the copyrights of many 
ponular omu positions. 

I^ut a nuioh largiT numln^r of the then existing firms did not join 
in thesi^ i\>ntracts. And in the five years that have since elapsed many 
new firms have spnuig up. All of these have been able to compete 
with the publis!\oiN who wen* parties to the ^Eolian contracts. They 
have not iMHupIainiHl that thev ci>uld not get good music to publish. 
Anuuig the i^Mujuv^itions publislunl by these finns are many that have 
Uhviuo |H>piilar. Kven tnosi* publishers who five years ago did not 
a>nln>l tlio Nvorks of any Nvell-known a>mpi>ser have since brought 
out jrn\*»t -»uiHv>s**s. It is a featun* of the musical field that some of 
the uu>>t |H>puhir sui\vs>e^ are written by unknown composers^ It is 
a fiold that can not Iv i^Mitn^lUnl bv any set of men. 

Fnrthennon\ the publishers wlio beimme {parties to the .Eolian 
ivntmot^ \vM\ no ri^lit to di<jH>s%^ of the meehanii*al rights in most of 
the i\>ni|H»itionv of which thev held the copyrights. For they hold 
the \\>pyrii:hts a< tru>ttvs for the it>in{H>5ers. 

The u<ual ivntmct< tviwtvn iXMMjHvers and pubH4iers by virtue of 
%\hicl\ the v\>pyr!ght>? an* taken out in the names of the publishers 
are ni>thing nuHv than publishing ciHitracts^ Tli^ only rights that the 
puMishers loquir^ arv the publishing rights^ The provisions as to 

BirvtsiOK OS* cotrrEiOHT laws. 329 

compensation show that nothing more is intended. The contracts 
provide for the payment of a royalty to the composer for every sheet 
of music publishea. There is no mention of any compensation for 
performing rights, and no publisher claims that he owns the perf orm- 
mg rights because he holas the record-title to the copyright. The 
performing riffht is treated as a distinct and independent estate, 
belonging to tne composer, and the composer disposes of it by a 
separate contract with a theatrical manager. 

This equally applies to mechanical rights. There is nothing said 
about them in the contracts under which the publishers hold the copy- 
rights for the composers ; no compensation is provided for the grant- 
ing of these rights. These rights were evidently not contemplated 
by the composer and publisher when they made their contracts, be- 
cause they were not thought of as enforcible rights. There was no 
intention on the part of the parties to effect a granting of these rights. 
Hence, they can not be hela to have been acquired by the publi^ers. 

The only compositions in which these publishers^ control the 
mechanical rights are those which they have nought outright. And 
these constitute a very insignificant portion of the musical productions 
held by them. 

A petition signed by nine-tenths of the composers of the country, 
and among them all the leading composers, has been forwarded to 
the committee asking for the passage or this bill. And in this petition 
the composers positively deny that they were parties to any of the 
^olian contracts or in any wise sanctioned the same or even had 
knowledge thereof. It is also stated that most of the composers are 
not under contract with any publisher, and that where such contracts 
exist they are for very limited periods, two years being the longest 
duration, and the contracts relate solely to the publishing of music. 

The enactment of the pending bili will greatly strengtnen the posi- 
tion taken by the composers that the publishers did not acquire the 
mechanical rights in their compositions and hence could not pass 
them over to the ^olian Company. For if this bill is enacted these 
rights will be new rights created by the bill, and could not possibly 
be claimed to have been assigned away by the composers by contracts 
made before the rights came into existence. 

Since the introduction of this bill many composers in their con- 
tracts with publishers reserve to themselves expressly the mechanical 
rights in their compositions. They thus anticipate the section of the 
bill which makes the right to use musical compositions for perfo- 
rated rolls or phonographic devices a separate and independent estate 
subject to assignment, lease, license, gift, bequest, or inheritance. 
The composer under this section of the bill will dispose of the 
mechanical rights to his compositions independently of his publish- 
ing rights, as he now does in the case of the performing rights of 
operas, musical comedies, plays, etc. 

How absurd, then, to claim that this bill was introduced at the re- 
quest of the -^olian Company or in its interest. 

The ^olian Company had no hand in it whatever, has had noth- 
ing to do with it in any manner, shape, or form, and it had no rep- 
resentatives urging its enactment at the conferences or before the 
Joint Committee of the Senate and House on Patents at any of the 
hearings. The copyright bill is the result of a series of conferences 
extending over one year in duration called by the Librarian of Con- 

880 BBVisioir OF copyright laws. 

gress, to which were invited all organizations interested in copyright 
protection. The conferences were called because of the universal 
condemnation of the present laws which do not adequately protect, 
for the purpose of drafting a bill for submission to Congress repre- 
senting the views of all interested in the subject. And at these con- 
ferences the publishers suggested subdivision (g), which was sup- 
ported by the composers and the Authors' Copyright League. 

The proposed bill is not retroactive. It is to affect only such com- 

{)Ositions as are copyrighted from the date of the enactment of the 
aw. All compositions written from time immemorial up to the date 
of the passing of the law are free to the manufacturers of perforated 
rolls and phonograph records to exploit and make money out of, to 
their hearts' content, without any interference whatever on the part 
of any publisher or composer. 

The enactment of the law will be a stimulus to the writing of good 
music, and make this country the musical center of the world. The 
manufacturers will comb this country and Europe for men who have 
talent to write music and by paying them for their labors will cause 
them to exert the energies of their minds in that direction. 

This country is l)ecoming the leader in the dramatic field simply 
because of the encouragement given to dramatists. If Mr. Belasco 
produces a play like the " Music Master," his rival in business, Mr. 
Harris, in order to compete and hold his patronage, presents " The 
Lion and the Mouse;" Mr. Frohman, " The Hypocrites;" Mr. Dilling- 
ham, "The Red Mill;" Mr. Shubert, "The Great Divide;" ilr. 
Fiske, " The New York Idea;" Mr. Brady, " The Law and the Man," 
and we could go on and enumerate any number of masterpieces that 
have been written during the past three years because of this great 
rivalry in the theatrical business. 

Can it be supposed that any of these managers would have sought 
the greatest dramatists and paid very large sums to get these master- 
pieces written and secure the right to produce them if they knew 
that every other manager could with impunity take these composi- 
tions and produce them in everv other theater in the country? Or 
would these masterpieces have been written if the dramatists knew 
that every manager could take their property without paying them 
any ccmipensation therefor? 

The advantages that will flow from this legislation in the j)romo- 
tion of the musical art are plain. The objections are not entitled to 
consideration. Their real point is that the bill, if passed, will put a 
stop to the seizure by the autcmiatic instrument man u fact urei*s for 
their gain of the composers' property. Anything that stands in the 
w^ay of this method ot making money is descril)ed as monopoly. 

We have s(»en how little foundation there is for this monopoly 
charge. It is not made in good faith. 

Among those who are loudest in raising the cry of monopoly we 
find the manufacturers of phonographs and numerous other devices 
that are expressly excluded from the ^-Eolian contracts. They do 
not object lx»cause they are in any danger from the alleged .Eolian 
Company. They object because they do not 'want to be hindered in 
their practice of appropriating the composers' proj>erty. 

The opponents of this legislation have formed an association under 
the name of the American Musical Copyright League, which has for . 
one of its objects the <lefeating of any legislation that may Ik» deemed 


hostile to the interests of the manufacturers of automatic musical 
instruments. In this association the phonograph and talking machine 
manufacturing companies are taking a leading part, the representa- 
tive of one of these companies being the president of the league. 

It is a matter of record that these phonograph and talking machine 
companies are not on principle opposed to monopolistic methods. 

From the report of a case decided by the United States circuit 
court, district of Massachusetts (Edison Phonograph Co. v. Pike, 116 
Fed., 863), it appears that the Edison Phonograpn Company, one of 
the opponents ox this bill, is enforcing upon all jobbers and dealers 
regulations that are most oppressively in restraint of trade. These 
regulations require dealers to sell only at terms and prices dictated by 
the Edison Phonograph Company, and to sign agreements embodying 
these terms and prices. Jobbers are forbidden to sell to dealers who 
will not sign these agreements or who are on what is called " our sus- 
pended list." Those who violate the restrictions as to the persons to 
whom and the prices at which the instruments may be sold are prose- 
cuted as infringers. 

A case decided by the circuit cojart of appeals. Seventh district 
(Victor Talking Machine Co. v. The Fair, 123 Fed., 424), reveals 
similar methods being practiced by the Victor Talking Machine 

Corporations that are pursuing such tactics are not opp(^d to 
monopolies. And an association that is led by such corporations is 
not intent on opposing restraint of trade upon principle. 

There is no danger of any monopoly being built up by the music 

But there would be nothing surprising to see a trust growing out 
of this combination of gigantic concerns that is now attempting to 
defeat this bill by the false cir of monopoly, although each of them 
is already a monopoly in itself. 

Asa final observation on this charge of monopoly, it may be pointed 
out that it has been held that copyright does not legalize monopoly. 
(Beman v, Harrow Company, 186 U. S., 70, and Bobbs-Merrill Co. v. 
Straus, 139 Fed. Rep., 155.) In the latter case the court said: 

That there Is no sanction or support whatever to the doctrine that the several 
owners of distinct patents each having a monopoly of his particular patent, or 
the several owners of distinct copyrights each having a monopoly of his par- 
ticular copyright, may combine and conspire as to their patented articles, or as 
to their copyrights or books published under and protected thereby to restrain 
Interstate commerce In articles made or produced thereunder. The right or 
privilege to form such a combination or conspiracy Is not embraced or Included 
within the monopoly granted. 

The enactment of this bill will not affect the antitrust laws. 

Under these decisions the Attorney-General could commence ac- 
tions against the ^olian Company under the Sherman Act, or the 
antitrust laws, to cancel the contracts between the ^olian Company 
and the publishers if it should appear that these contracts give the 
^Eolian Company a monopoly. However, if it is felt that the Sher- 
man Act is not adequate to cope with the situation, then a clause could 
be inserted into the bill making it impossible to carrv out the alleged 
monopoly, and if necessary criminal provisions coula be added. 

It is eminently unfair that hundreds of innocent American com- 
posers should be made to suffer because of the alleged wrongdoing 



of certain publishers, and it would be equally unfair that publi^ers 
who made no such contracts with the iEohari Company should be 
made to suffer. 

Since 1902 a great many new publishing houses have been formed, 
end those people have not signed. I say to you, in all sincerity and 
earnestness, that you can not create a monopoly of genius in musical 
works. I tell you that you can get writers and composers who will 
make contracts for their works with anyone and who will write for 
you if you will agree to reward them. You can get hundreds of com- 
posers. This country is full of composers and authors who are 
anxious to write. 

The Chairman. In order to get down to the substance of this mat- 
ter, do you not believe that if the Victor Talking Machine Company 
or the ^olian Company or any other one large concern had the 
exclusive right to produce the music of half a dozen men that could 
be named among the American composers, they would have an advan- 
tage over every other manufacturing concern m this country? 

Mr. BuRKAN. They would to an extent. But let me give you an 
illustration. You have a number of theatrical producers, and there 
are 15 or 20 leading dramatists. The manager that offers the greatest 
reward gets the best work and the best production. It is a matter of 
competition, pure and simple. A dramatist will not write unless be 
knows he is going to be compensated, and he will write in accordance 
with the character and amount of his reward. 

The Chairman. There I agree with you absolutely ; but the drama- 
tist has only one way of getting his return, and he keeps his work 
unpublished. The composer of music gets his return from a royalty, 
after publishing his music and selling it to the public. 

Mr. BuRKAN. Yes, sir. 

The Chairman. And now he wants still another return. 

Mr. BuRKAN. Yes; and I will tell you why. 

The Chairman. I am perfectly willing that he shall have it, so far 
as I am concerned, if that is coupled with a provision that anybody 
who desires to pay him a royalty shall have the use of his compo- 

Mr. BuRKAN. Suppose that I am a manufacturer of these devices, 
and I accept your stipulated provision for a royalty. You say that 
you will give me 5 per cent. Suppose I wait a year for my royalty, 
and at the end of a year I get a statement from you offering me $20. 
Suppose I am not getting a square deal. You have here the authors 
who are complaining that the publishers have not dealt fairly with 
them. What security will you give the composer that he will get 
a square deal? 

The Chairman. Mr. Burkan, I take it for granted that you are 
not going to contend that all men are dishonest. 

Mr. Burkan. No, sir; I do not. 

The Chairman. Because, if that is the case, I could reverse the 
story and tell what Mr. Sousa got from the sale of a certain publi- 
cation of his from a certain publishing house ; but I do not want that 
question brought up. I will say to you, so far as I personally am 
concerned, that my idea is the royalty should be based upon the sales 
of the manufacturer, no matter what they are, and he certainly would 
give as honest a return as a publishing house now gives. 


Mr. BuRKAN. Do you mean to tell me that the Clongress of the 
United States can, by any act, provide that a manufacturer will pay 
a royalty, and will honestly pay it? 

The Chairman. I am not saying that. I do not contend that for 
a minute. But while we are on that subject, I do not see why you 
should claim that the manufacturer would be any more dishonest 
than the publisher is. 

Mr. BuRKAN. I do not. There are some publishers who are dis- 
hone^. There are some publishers who cheat their authors and 
composers. You will find that some manufacturer, some man who 
is irresponsible, will go into this field, take the property of a com- 
poser, and put it upon these records, and then wnat redress has the 
composer, if he should refuse to pay, or if he does not deal honestly 
with him? Is not the relationship between the manufacturer and 
the composer one of trust and confidence? 

The Chairman. Not altogether so. 

Mr. BuRKAN. Absolutely so. A man picks out a publisher just as 
he picks out his lawyer or his doctor, because he has confidence in 
that individual. You can not make a man honest by legislation. 

Representative Leqare. Did you make this statement: 

This proposition of specifying a royalty by statute Is not only unconstitu- 
tional but absurd. Who shall say what a writer or composer shall se)l his. 
works for? This is tantamount to depriving one of property without due 

Mr. BuRKAN. I did not make that statement. I did not say, 
"Without due process." 
Eepresentative Legare. Did you make this statement: 

In one part of the proposed bill title is conferred on the writer, and in 
another section his property is confiscated. However, the bill has not yet 
passed, and therefore other things may happen before it gets through both 
branches on Congress. 

Mr. BuRKAN. That is not my language, sir. 

Representative Legare. I want to hear you on the question of the 
constitutionality of this le^slation. You say it is unconstitutional? 

Mr. BuRKAN. Yes, sir; I contend that it is unconstitutional. 

Representative Legare. Let us hear you on that subject. 

Mr. BuRKAN. The Constitution provides that Congress shall have 
the power to promote the progress of science and the useful arts by 
securing, for limited times, to authors and inventors the exclusive 
rights to their respective writings and discoveries. Now, '* exclusive 
right " means all rights in his writing and discoveries. One of the 
rights that the composer has in a musical composition is to the repro- 
duction of the same by these devices; but it rests with Congress to 
secure that right. 

The Chairman. The Supreme Court has said that it did not. 

Mr. BuRKAN. The Supreme Court simply said that the present law 
did not cover this form of device. If you recognize that this form of 
reproduction is a part of that writing contemplated by the Constitu- 
tion and is a result of that writing, then he is entitled to the exclu- 
sive right in that record. 

The Chairman. There is no law that recognizes that proposition. 

Mr. BuRKAN. No; you did not legislate upon that prooosition, but 
the moment you do, then you are bound to give him, unaer this pro- 
vision, an exclusive right. The purpose of this provision was to in- 


duce men to work and labor and exercise their ingenuity so that the 
peoDle would be thereby benefited. 

The Chairman. We do not give an exclusive right to a patent 
beyond a limited time. 

Mr. BuRKAN. But you ^ve the patentee a complete monopoly dur- 
ing that limited period without any string attached. You make him 
a czar over his invention during that period. 

Representative Leake. It is an exclusive right during a limited 
period of time. 

Mr. BuRKAN. It is an exclusive right for a limited time; but the 
moment you attempt to legislate and say that this form of reproduc- 
tion is a result of that writing, then you are bound to give him 
exclusive rights. I say now that if you pass this bill that question 
will be tested as to its constitutionality, not by us, but by some manu- 
facturer, and I will stake my reputation upon the proposition. 

Senator Brandegee. Have you any decision or authority to the 
effect that, under this languajge^ we must grant absolute and exclusive 
rights, and that we can not limit it or put any condition upon it ? 

Mr. BuRKAN. The question has never come up, to my knowledge, 
in any case. 

Senator Brandegee. Do we not give an exclusive right under the 
copyright law, provided they shall allow certain books to be imported 
by certain people and file two copies with the Library, under certain 

Mr. BuRKAN. Yes; you give them the right, subject to certain 
restrictions. In giving this exclusive right you may impose any rea- 
sonable condition in order to obtain the exclusive monopoly. 

Senator Brandegee. As I understand Senator Smoot, his proposi- 
tion is that it would be constitutional, under this same provision, 
if we gave the author of music the exclusive right to sell it and to 
reproduce it, subject to a royalty to be paid by certain people for 
usmg it. 

The Chairman. We give the libraries certain rights. The author 
does not have exclusive rights. 

Representative Legare. Would not this be a condition precedent? 

Mr. Burkan. It would be a condition, but it could not be enforced 
in the courts, because the purpose of the Constitution was to induce 
a man to write and give him sole control of his hibor, l)ecause a man 
would not write if everybody could take his property. 

Senator Brandegee. But you are going to demonstrate that this 
proposition of Senator Smoot is unconstitutional. What are your 
authorities ? 

Mr. Bi'RKAN. The wording of the Constitution. 

Representative Lecjare. Can you file a brief on this subject ? 

Mr. Bi rkan. Yes; I will do so with pleasure. 

The Chairman. Do you think it is unconstitutional to allow the 
libraries the privilege of importation? 

Mr. Burkan. I have not pven that matter any attention or study, 
and I am not prepared to discuss it at this time. But I do not think 
it is, because it is imposing a reasonable condition to obtain an exclu- 
sive right. 

The Chairman. Is not that upon the same identical footing as the 
proposed royalty plan ? 


Mr. BuRKAN. No, sir ; it is entirely different, because in considerinj^ 
this proposition you have got to go back to the history of the Consti- 
tution. You have got to go back to the debates in the conventions and 
to the copyright legislation of the different States prior to the adop- 
tion of the Constitution, in which it appears very explicitly that m 
order to induce a man to write or to exercise his intellectual faculties 
it is necessary to give him full rights in his property, because an 
author will not write, if everybody can take his property. 

Senator Brandeoee. That is not a constitutional question or argu- 
ment. That is a question of policy. 

Mr. BiTRKAN. It is a constitutional question, absolutely. 

The Chairman. Do you not think that if the right is a grant of an 
additional right it can be limited? 

Mr. BuRKAN. Only in so far as the Constitution permits. The only 
power you have to grant copyright is derived from the Constitution, 
and whatever right you have to legislate here depends solely upon 
this provision of the Constitution. Outside of that you can not act. 
You may grant exclusive rights for limited times. Not limited rights 
for limited times. 

Now, what is to prevent you, or to prevent the legislature, from 
passing an act that every dramatist must permit his works to be pro- 
duced by anvone upon the payment of a royalty of $1. What is to 
prevent the legislature from passing an act that every author must 
sell a book for a royalty of 5 cents a copy. Would you not hy such 
legislation defeat the spirit and intent oi the Constitution to give the 
author exclusive rights in his property, so that he would have some in- 
ducement to work? 

The Chairman. There is another provision that would take care of 
that — the provision that you can not confiscate a man's property. 

Mr. Bitrkan. Under the Constitution you can deprive the author 
of his right by failing to legislate upon new methods of reproducing 
his work not covered oy present statutes. 

Representative Legare. That is the position in which you find 
yourselves at this moment. You say that we can not give you a right 
without we give you the exclusive right, when the Supreme Court 
says that here is one right that we have not given you ? 

Mr. BuRKAN. Yes, sir. 

Representative Legare. Then you have not got the exclusive rights, 
because the Supreme Court says you have not got all of your rights. 

Mr.* BuRKAN. Because of the wording of the statute. 

Senator Brandegee. But thej do not say the statute is unconstitu- 
tional on account of that wording. 

Mr. BuRKAN. No; they do not. 

Senator Brandegee. Then whj have they not, in effect, decided 
that you can grant an exclusive right, with limitations? 

Mr. BuRKAN. The question of the constitutionality of this provi- 
sion was not raised before the Supreme Court. The entire discussion 
rested upon the meaning of the word " copy." 

Senator Brandegee. And you think that statute would, under your 
theory, be declared unconstitutional if the question was raised ? 

Mr. BuRKAN. I do not say so. 

Senator Brandegee. Then will you not say why this provision 
which Senator Smoot proposes would be unconstitutional ? 


Mr. BrjRKAN. I say that the moment you grant the ri^ht which the 
Constitution permits you to grant, you must grant it m accordance 
with the Constitution. You may refuse to give a copyright, but once 
you exercise the power, in pursuance of this provision or the Consti- 
tution, you are bpund to give it in accordance with its intent and 
meaning. Whatever power you can exercise is only by virtue of this 

^ The Chairman. The law as it stands to-day is in that same situa- 
tion. A restricted right has already been granted under the present 

Senator Brandegee. Do you think you have answered my question 
up to this time? 

Mr. BuRKAN. I would like to have it stated again. 

Senator Brandegee. My question is this: You say that the con- 
stitutionality of the present copyright statute has never been directly 
raised ? 

Mr. Burkan. It has been raised in the Sarony case — ^the photo- 
graph case. 

Senator Brandegee. You claim that it is impossible for Congress 
to grant a copyright without its being exclusive! 

Mr. Burkan. Yes ; in so far as you take away from the author the 
exclusive rights in his property. You may give him only one set of 
rights and exclude all other rights. For instance, you may give a 
composer or a dramatist only the right to publish, and refuse to give 
him the right of public performance, but the moment you do legislate 
to give him the right of public performance, then that right must be 

Senator Brandegee. Now, I ask you if they are exclusive, with 
reference to the copyright of books ? 

Mr. Burkan. Y es, sir. 

Senator Brandegei-:. If that is so, how can the law provide that 
libraries can hnport free, without being subject to the provisions of 
the copyright act, and that the person to whom the copyright is 
granted shall deposit books in the Library? 

Mr. Burkan. In the first place, the question has never been raised 
that I know of. I do not think the authors have ever raised the 

Senator Brandegee. Do you think you have answered my question? 

Mr. Burkan. I am answering it now. Xo; I do not think that 
provision is unconstitutional, because it does not deprive the author 
of his exclusive rights for the reason that, in your copyright law, you 
say that he must deposit two copies with the Librarian, and that is 
one of the conditions for granting this exclusive right for a limited 
time. Y"ou may impose and enforce any reasonable condition which 
is formulated according to the Constitution, but you may not dictate 
to him upon what terms he shall dispose of his property. You have 
no right to reguhite the price. The Government can not regulate 
the price or the royalty and say that he must dispose of his property 
upon such a basis, because whatever right you grant must be granted 
in pursuance of this particular provision of the Constitution. So 
the moment you say to a man that you extend his rights, it must be 
such an extension as the Constitution confers upon him, and that is an 
exclusive right 


Senator Brandeoee. He has no right whatever unless we do legis- 
late further? 

Mr. BuRKAN. No, sir. 

Senator Brandegee. If we grant him a ri^ht which he does not 
now have, how can vou say that we are depriving him of any right 
which he does have? 

Mr. Burkan. I do not say that you are depriving him of any right 
which he does have. 

Senator Brandegee. I understood you to say that unless we gave 
him exclusive right, when he has no right now, that we are depriving 
him of a right wnen we confer one upon him under limitation* 

Mr. Burkan. No ; I say that, under the Constitution, you are bound 
to give him only such rights as the Constitution provides, and I say 
that you are bound to give him exclusive rights. 

Senator Brandegee. Then I ask you how it is that we have been 
able not to give an exclusive right, but to give a partial right, or a 
right under certain conditions? * 

Mr. Burkan. Do you refer to importations? 

Senator Brandegee. I do, and to the provision that copies shall be 
deposited in libraries. 

Mr. Bi'RKAN. That is a condition of granting the copyright. 

Senator Brandegee. Would not this be a grant upon conditions? 

Mr. Burkan. No ; because you are not giving him full rights. In 
one case you say to a man that he must give up two copies to obtain 
an exclusive right, and in the other case you say to the man that you 
must sell these things to everybody for 1 cent or 2 cents a copy. 

Senator Brandegee. No; we do not say that he must sell it at all; 
but we say that if he does sell it to anybody he must give the others 
an equal chance. 

Mr. Burkan. That is equivalent to saying that he must do it. 

Representative Legare. I would suggest that you file a brief on 
this subject, as I have my doubts about that matter myself. 

Representative Pratt. Primarily your purpose here is to secure 
protection to the authors and composers. 

Mr. Burkan: Yes, sir. 

Representative Pratt. You believe that the manufacturers of 
musical devices have a place in the world? 

Mr. Burkan. Yes, sir; I certainly do. 

Representative Pratt. And that one contributes to tlie commerrial 
value of the other? 

Mr. Burkan. Yes, sir. 

Representative Pratt. You think there is a common interest? 

Mr. Burkan. Yes, sir ; I do. I believe both should be protected. 

Representative Pratt. I want to ask if it would not be possible to 
segregate these interests and treat them separately, making provision 
for their separate and distinct interests. 

Mr. Burkan. There was a good deal of argument upon that propo- 
sition when we appeared before the Joint Copyright Committee of 
Congress last session, and some urged that each industry should have 
a separate bill like the English copyright act. 

Representative Legare. You represent the publishers and certain 
composers. We are trying to cet a good bill to protect the publishers 
and the authors and everybody else. This fight stands in the way 


of all the parties, and we will probably get no bill at all through 

Representative Pratt. My (Question is whether it is best to bring 
them all in under one provision, or to have them provided for 

Kepresentative Legare. You should get what you can for the people 
you represent, under this bill. 

Mr. BuRKAN. I am trying to get all I can for my people. The 
publishers are anxious to have this bill passed, in so far as it relates 
to mechanical instruments and the misdemeanor clause. The com- 
posers, however, are also very urgent about this mechanical music 
problem, because they, with the publishers, claim that it interferes 
with their business, and for that reason that Congress should do 
something to compensate them. They say they have spent thousands 
of dollars in advertising these compositions, and then these me- 
chanical music-machine people come along and take the compo- 
sitions, use them upon their machines, and profit by their labor and 
energ}\ They contend that the manufacturer ought to pay a part 
of the advertising, and that he ought to do something to encourage 
the composer to write. They say that if these people are permitted 
to go on and not encourage the composer, he will not write and will 
not give to the public his effort and labor, without some compensa- 

Representative Pratt. If upon mature consideration it should ap- 
pear that it wouhl Ik* better to st»parate these interests and treat 
them individually, would you then be willing to agree to such a 
plan ? 

Mr. BuRKAN. I would be willing to agi-ee, provided there was 
some asurance that this matter would not he taken out of the l^ill 
and never resurrected. That is the danger in the matter. 

Representative LtxiAiu-:. You would rather take the chances of 
losing it a 11^ 

Mr. Bi UKAN. The danmT is that it may not get out of conunittee. 


Mr. Knowlks. Mr. Chairman and ^rentlemen of the eonimittee, in 
order to more clearly define my position to you here and the interests 
I represent, 1 will, with your permission, read a short resolution 
j)asse(l at the last regular meeting of this organization in New York. 
It reads: 


Th(» Wliite Knts of Ainorica, n coriMH-Htion or^niiiztvl iiiulor the luoniborship 
law of tlie Stati* of Now York, whoso iiKMiihershl]) Is (•oiuim>s4h1 of about 2,000 
sinjrers, roiniMis<'rs. tlnmiatists, aiitliors. aiul ]KM*fonners of all classes <Mi;Lja^:<Hl 
in the tiK'atrical business throughout the Inittsl States, Canada, Kuri>i>e. and 
other parts of the worhl. at a tluly authorlzcHl nu^'tinj: hehl at the nieetinj: 
hall of sai<l or;ranizatiou, at ir>ri.S llroailway, borough of Maidiattan, city i»f 
New York — 

Ri'Httlvi'dy That it indorses and lends the supiiort of its members to the ad- 
vocacy of the so-called Kittredge and Barchfeld copyright bills now pending 


before the Senate and the House of Bepresentatiyes of the United States Con- 
gress, the contents of which provide greater and more equitable protection to 
the rights of the author and composer of copyrightable matter and the per- 
forming rights of the same than the present law of copyrights. 

That Brother Harry Knowles is instructed to be present at the public hear- 
ings before the Committee on Patents relative to the proposed copyright laws, 
and to present this resolution. 

In order to define our position, I will say that we had these four 
bills in front of us, and, after reading them, we concluded that the 
Barchfeld and Kittredge bills gave us more protection than the 
Smoot and Currier bills. Not being conversant with the rules of 
procedure in the Senate, we were laboring under the impression that 
these bills would either be accepted or rejected in their entirety, and 
therefore we chose the ones that gave us the better protection; but 
if you will listen to the suggestions and amendments and incorporate 
them in the present bill, giving such protection as we desire, we have 
no objection to the Smoot and Currier bills. 

Some time ago you asked that we should adhere to the facts. I 
will not only adhere to the facts, but I will give you proof of those 
facts. It has been stated here that a great many plays were pirated 
or stolen. I will say to you that my organization is more concerned 
in consequence of that fact than of an^ other one cause, for the reason 
that we have had continual complamt from our members of their 
acts being stolen. 

What I mean by acts are short playlets, either dramatic or musical 
or both. The reason for that is that they are used in vaudeville 
theaters principally, and every town of any importance in the United 
States has one or more of these vaudeville theaters, giving from two 
to >three or more performances daily. *As these acts are short, it is 
more easy to acquire them than it is a long play. 

These acts are acquired surreptitiously and sold openly, principally 
in Chicago. It has happened to us on a great many occasions that 
we have, under the present law, been unawe to protect our members 
from such stealing and playing of these acts throughout the United 

The Chairman. If the penalty clause were changed so as to pro- 
vide for a sentence of imprisonment, would not that wipe out all of 
your difficulty? 

Mr. Knowles. Hardly, as I will point out to you a little later. 

A catalogue came under my notice the other day from Chicago. 
It is called " Descriptive catalogue of one-act plays, burlesque, 
curtain-raisers, sketches, etc., for sale or rent by the Chicago Manu- 
script Company, 104 La Salle street, Chicago, 111.'' In looking 
through this catalogue, to say that I was surprised does not express 
mj^ feeling. I was amazed to see included in this catalogue compo- 
sitions which I absolutely knew were copyrighted, giving a full de- 
scription of them, and offering to sell them to anyone for $2 per 
manuscript copy. 

In looking over this list I thought possibly there was some catch 
in it and that they i-eally would not furnish you with a manuscript 
of a copyrighted play, so in order to be thoroughly sure of that I 
sent, through our stenographer, $2, and ordered one of these acts 
which I felt quite sure was copyrighted and which is listed m here 


under the descriptive title of " Skinnie's Finish." In return we got 
this letter : 

Dear Sib: We sent you this day the manuscript of "Sklnnie's Finish.'* 
Hand you herewith list of other sketches. Trust the one sent you proves sat- 
isfactory and that you will favor us with your future orders. 
We are, sincerely. 

The Chicago Manuscript Company. 

I have here the copy of the jnanuscript, which I offer in evidence 
before this committee. 

(For the manuscript see Appendix.) 

In looking through this manuscript I find that it is identical not 
onl^ in word and languajge, but in what we term " business," in de- 
scribing the various motions gone through on the sta^ during the 
performance of this act, and giving every particular oi the perrorm- 
ajice in the ordinary way. 

That, I think, proves conclusively that they really do issue these 
copies, according to the catalogue. 

The Chairman. Is that an absolute reproduction of the original? 

Mr. Knowles. An absolute reproduction of the original. 

The Chairman. Name and all ? 

Mr. Knowles. Name and all. But I will go further than that. 
I thought there might be a possibility of some defect in the copy- 
right of this sketch and that probably they would not be liable under 
the present law. There is a play produced at Chase's vaudeville 
theater, Washington, D. C, this week that is copyrighted. I found 
that play is also listed in this catalogue, giving a full description of 
the act, the characters, and the business, even down to the most 
minute detail. I saw that performance ana it conforms exactly with 
the description given in this catalogue. I had Tom Nawn get me his 
copyright, which I have here to show you that he has complied with 
the law. 

The Chairman. Could you not, with a provision for imprisonment 
in the penalty clause, stop this sort of work? 

Mr. Knowles. Only in this way: We have found that no matter 
what the penalty is, if it merely attaches itself to the person who is 
producing or playing this act, it has been very diflScult for^us to get 
them. A\ e are in New York and these people are moving continually 
all over the coimtry. 

I will show you how it affects our members. Mr. Tom Nawn is 
playing this act in most of the important houses in the East, but when 
he wants to take it into the West, they (the managers or agents) say 
that they can not use it because it has already been played there. 

Now, what we want is a provision with reference to aiding and 
abetting, which you have in section 32. 

The Chairman. You are in close touch with all of the theaters in 
the country, are you not ? 

Mr. Knowles. No, sir; they are too far apart for us to be in abso- 
lute touch with them, and they have a chanjge of bill every week. It 
is impossible for us to find out exactly what is going on in this respect, 
unless we hear of it from some member who has been injured. 

Representative Legare. ^Vhat is the amendment you propose ? 

Mr. Knowles. I am not thoroughly conversant with the law or how 
to interpret it, but I want to say I believe section 31 will cover our 
point. It provides: 


That any person who knowingly and willfully and for profit shall infringe 
any copyright secured by this act, or who shall knowingly and willfully aid or 
abet such infringement, shall be deemed guilty of a misdemeanor, and upon con- 
viction thereof shall be subject to a fine of not less than one hundred dollars nor 
more than one thousand dollars and stand committed to jail until said fine and 
costs are paid. 

Representative Legare. Does that cover your situation ? 
Mr. Knowles. I think it does. If, in your jud^ent, it does, we 
shall most heartily approve of that section in the bill. 

There is one other matter to which I wish to call attention. The 

E resent law asks for two printed copies. If a man writes a sketch for 
imself, and not for sale, he does not want to go to the expense of 
having it printed. I believe that if you will put in a provision to 
cover that, and say that he may submit one copy, it will be an ad- 



The Librarian of Congress. Mr. Chairman, I am merely to submit 
a statement which has been compiled at the request of Mr. Chairman 
Currier. At his request I unaertook to get together the foreign 
statutes, so far as I could find them, having any bearing upon tte 
question of the importation of authorized editions, with special refer- 
ence to the privilege of importation for use and not for sale. 

It proved to be a considerable task, and was complicated by the 
necessity of referring to commentaries as well as the statutes them- 
selves to find out what the actual practice is. 

This staten^ent is probably too lengthy to be incorporated into the 
record, but in turning it in to the committee I think I should call 
attention to the fact that I have had copies manifolded for three in- 
terests which I supposed would be more particularly concerned, one 
for the publishers, one for Mr. Jenner, representing the individual, 
and one for Mr. Cutter, representing the library interests. They 
have none of them seen it. I have copies for them, which will go to 
them, because, when this statement is turned in to the comnuttee, 
there is a possibility that, as a whole, it may not be printed with the 

The Chairman. I think it ought to so into the record. 

The Librarian of Congress. Even then, in order to avoid any mis- 
understanding, I think I must call attention to three points, because 
they appear at different points of the document. 

In the first place, so far as I have been able to find, the right to a 
subdivision oi the copyright territory exists abroad to quite an ex- 
tent. It is termed in Grermany " Getheiltes Verlagsrecht." It is 
termed in France " Edition Partagee." 

The ri^ht of territorial subdivision includes the right to the ex- 
clusion of foreign editions to some extent, but I have not found that 
upon the Continent the distinction is drawn, in the statutes, between 
books originating abroad and those not so originating. 

I do find, however, that as early or as late as 1844 such a distinction 
appears in the British statutes. 

I find also a reference, which I think I ought to call to your atten- 
tion, in the latest work on copyrights by Professor Kohler, a famous 

39207—08 ^16 


German authority, of the University of Berlin. He remarks that 
whatever the exclusion, exceptions, upon special considerations, 
ought to be made in favor of learned institutions ; and he states that 
such an exception seems to be specifically provided for only in the 
American law. He seems, however, to have overlooked the statutes 
of Canada, which come first in this statement, and which should be 
specifically noted for three things : 

In the first place, because of the exception in favor of public 
libraries, college libraries, and incorporated institutions; in the second 
place, because of the exception in favor of the individual, who is 
allowed to import, through the Canadian licensee, a copy of the foreign 
edition, not " by permission of the proprietor," but who has a ri^t 
to demand that the proprietor shall import for him ; and in the third 
place, because of the provision (I refer still to the Canadian act of 
1900) that the general prohibition of importation which is covered 
by the act, even as against an edition of a book originating abroad, 
may at any time be suspended by the Minister oi Agriculture if 
certain facts are brought to his attention. 

I read these provisions: 

(2) The minister of agriculture may at any time in like mamier, by order 
under his hand, suspend or revoke such prohibition upon Importation if it iB 
provetl to his satisfaction that — 

(a) Tlio license to reproduce in Canada has terminated or expired; or 

(b) The reasonable demand for the book in Canada Is not sufficiently met 
without importation; or 

(c) The book is not, having regard to the demand therefor in Canada, being 
suitably printed or published; or 

(d) Any other state of things exists on account of which It Is not in the 
public Interest to further prohibit importation. 

Now, Mr. Chairman, the copyright office is not partisan in this 
matter, or as to any other part of this bill, except to that which relates 
to its own administration. In submitting this statement to be printed 
I have felt it fair to all the interests to call attention to these divers 
facts that seemed to appear from an examination of the authorities, 
because the record of yesterday seems now defective, Mr. Jenner, for 
instance, depending upon a need and a sentiment for which justly he 
made appeal, and Mr. Putnam, on the other hand, depending upon 
what he regarded as general principles of copyright protection, out 
there was no reference on any i)art to the existing foreign statutes. 

(For the statement see Appendix.) 

Again, Mr. Chairman, l)<»Tore you take a recess, may I offer these 
oth(»r documents, to be insei-ted in tlie record in connection with this 
hearing? I understand that Chainuan Currier approves of this. 
They are simply the documents as to the conferences and bill that 
went into the hearings of 100(5, with the inclusion of the call issued by 
the Librarian for the* first copyright conference and the introductory 
statement by the Librarian to the conferees. Among the others are 
the s-tatement by the Librarian to the committees in presenting the 

I ask this, Mr. Chairman, principally for the reason that the fur- 
ther we get away from these conferen(*es the more danger there is of 
a misunderstanding about them and of misrepresentation, such a mis- 
understanding as that of Mr. Putnam yesteraay, which I was obliged 
to correct, to the effect that any participation in those conferences 


estopped anjr participant from obiecting here, or that they were leg- 
islative hearings in any sense. Mr. Putnam's misunderstanding was 
very natural, as, whimsical as it may seem, in view of certain allu- 
sions, he was not present at the first conference and took but a small 
part in the others. 


Mr. TiNDALE. Mr. Chairman and gentlemen of the committee, I 
represent the music publishing house of G. Schirmer, New York. I 
am a member of the executive committee of the Musical Publishers' 
Association, and I represent a number of composers of music who 
reside in New York. I also represent, indirectly, some 1,500 or more 
composers scattered throughout the country. Those composers have 
already submitted a petition to the committee, but I shall not ask 
you to encumber the record with it, since it is doubtless already 
ijefore you. 

The parties I represent are well pleased with the Smoot and Cur- 
rier bills, and wish to thank you for them. There is only one point 
with which we are dissatisfied, and that is the provisions with regard 
to reproducing rights for mechanical instruments. 

It has been stated by Mr. Burkan, and the decision of the Supreme 
Court of the United States in the TVTiite-Smith case has shown to us 
that the present law is defective in that it gives us only a partial 
copyright — that is to say, a copyright only on the printed page which 
simply conveys the arbitrary symwls of music to the eye. 

Now, music does not manifest itself to us through the eye. It man- 
ifests itself, essentially, through the ear and only by the sense of 
hearing. The hearing is the only one of the five senses through which 
music can make itself known to us or give us pleasure. I might go 
over the five senses, and would like to say that music can not be seen. 
No one is living who can say that he has ever seen music. It is true 
that a musician can take a score of music and scan it, and^ in his imag- 
ination, he can see what it might sound like ; but that is all he gets 
out of it. He gets no more out of it than the hungry man who looks 
through the lighted window of a hotel dining room and sees the 
guests enjoying their meal. He gets an imaginary meal, but nothing 
more substantial. 

Next, I could say that music does not appeal to the sense of taste. 
It can not be tasted. Music also does not appeal to the sense of smell 
nor does it appeal to the sense of touch. It appeals only to the sense 
of hearing. The only one of the five senses tnrough which we can 
get pleasure out of music is the sense of hearing. 

Therefore, it is a very simple matter that we ask you gentlemen 
to give us, and it could be expressed something like this : To copyright 
any system of notation or any system of record which can convey the 
musical idea of the composer to the ear — that is, by the only channel 
through which it can answer the purpose for which music is written. 

In this respect the Kittredge and Barchfeld bills are what we hope 
you gentlemen will decide to give us. 

Now, I would like to give you our reasons for asking you to adopt 
here the Kittredge and Barchfeld bills. 

Representative Currier. Do you want a provision in the bill by 
which foreign composers will get these rights as against the American 


public and rights which foreign countries will not give to American 

Mr. TiNDALE. I am not prepared to answer that; but reciprocity 
will take care of it. 

Representative Barchfeld (to Representative Currier). What 
about Italy? 

Representative Currier. That protection is given not by law, but 
by decision of the courts, and if that decision in Italy is cnanged by 
the court of last resort, then if we should enact this bill the Italian 
composer would have the right to compensation. 

Representative Barchfeld. What about Germany? 

Representative Currier. Germany does not protect against the 

Representative Barchfeld. It protects against the perforated roll. 

Mr. Tindale. I want to give you a few of the reasons why we 
vshould like to have the language of the Kittredge bill adopted, instead 
of the language of the other bills. 

I believe that the main point about which the composers and pub- 
lishers have contended from the start, in the matter of automatic 
musical instruments, has been practically conceded by the opponents 
of the bill we are advocating — that is to say, the property rights of 
the composer of music; the lact that he is a man like the rest of us; 
that he has a right to live the same as ourselves; that he is entitled to 
pay'for his work, and that it is unjust to take his property without 

•*Some of the opposition have stated to me since the previous hear- 
ings that they would now be willing to pay a royalty for the use of 
the composers' music if, on payment or royalty, all manufacturers 
could have the same privilege. This, I take it/is now the only ma- 
terial point about w^hicli there is disagi'ecnient on this phase of the 

Representative^ Citiuuek. You are not altogether correct. There 
have always been certain members of the House committee who were 
opposed to au}^ change. 

Mr. Tindale. Perhaps I should modify that by saying that it is 
the principal point of contention between parties outside of the com- 
mittees. I shall therefore confine myself to that one point. 

On its face their j)roposition (compulsory license) seems fair, but 
in reality it does not seem to me to be so. It would he superfluous for 
anyone to explain to this committee that a man's property either be- 
longs to him or does not belong to him. It is not his property unless 
he is free to dispose of it as he may choose. It is true this forms what 
might be called a monopoly, but all ownership of property is in a 
sense a monopoly, especially when we come into the field of patents or 
copyrights. It is intended to be a monopoly. 

The Chairman. You admit it would be a monopoly. Do you think 
it is right for us here to grant you something you have not got and 
which the Supreme Court of the United States says does not l)elong 
to you, and at the same time you say that by granting you that right 
there will be a monopoly created? 

Mr. Tindale. A copyright itself is a monopoly, and it is only in 
that sense I used the word. If you do give a coi)yright, it should be a 
copyright in fact, and not a nominal copyright. 


Representative Currier. If we decide to create absolutely new prop- 
erty rights, is there any reason why we should not attach such condi- 
tions as we think proper to the exercise of those rights? 

Mr. TiNDALE. The owner should be able to dispose of his property 
as he chooses; otherwise he does not own it. The only exception to 
this that I recall is where a State or a city may take over property un- 
der condemnation proceedings, for public use. 

Representative CuRraER. No, a railroad company can condemn a 
piece of property and can go right through it. 

Representative Barchfeld. But only by right of a franchise grant- 
ed by the State. 

Mr. TiNDALE. But for a manufacturer or individual to have such a 
right is repugnant to every sense of justice. A man's property is and 
should be his absolutely. 

Representative Currier. Mr. Tindale, do the people whom you rep- 
resent object to a provision in this bill which would give them a per- 
centage royalty ? Is it compensation they want, or exclusive control ? 

Mr. Tindale. We object to such a provision for the reason I will 
give you. 

Representative Currier. What is it you want, compensation or ex- 
clusive control ? 

Mr. Tindale. We want both. 

Representative Currier. And you are prepared to let the bill go to 
wreck and ruin unless you can have both ? 

Mr. Tindale. We have a fairly good copyright bill as it is. 

Representative Currier. We want to understand your position. 
Do you wish this bill to fail unless we give you both compensation and 
the exclusive right? I want the country to understand who are re- 
sponsible for the possible failure of this legislation. 

Mr. Tindale. We are willing to take that responsibility. We want 
a good bill or no bill at all. 

Representative Legare. You want everything or nothing? 

The Chairman. You represent a large interest here, and so far as 
you are concerned, you think the present law is a very good law ? 

Mr. Tindale. Yes, sir; except on this one point. It is claimed by 
the opposition that if the composer keeps the exclusive right to dis- 
pose of his music for mechanical instruments, some certain manu- 
facturers would obtain that right to the exclusion of others, and the 
machines or instruments manufactured by those others would be 
shut out from using those particular pieces. That is granted; but 
what of it ? Music publishers have to face the same situation. Book 
publishers the same, and any manufacturer of a patented or a copy- 
righted article. Mr. Herbeil contracts with his publisher for a cer- 
tain piece of music, and no other publisher can copy it. Were it not 
so, his original publisher would have no object in going to the ex- 
pense of i)reparing the editions and advertising them. 

The Chairman. Do you know of any other incident in the history 
of this whole country when there was an effort made to secure a 
monopoly in the cutting or reproduction of music, outside of the one 
made by the JEolian Company? 

Mr. TiNDAi^. Would you mind repeating that question? 

The Chairman. Do you know of any other case in the history of 
this country where one concern tried to secure an absolute monopoly 
of music, except the one attempted by the iEolian Company? 


Mr. TiNDALE. But that has been knocked in the head by the 
Supreme Court of the United States. 

The Chairman. But you are asking us here to pass a law so that 
it can be carried out. 

Representative Currier. Are there not many indications to-day 
that a close connection still exists, and do you not believe that if they 
got by legislation what they could not get in the Supreme Court, 
eveiy one of these contracts would be renewed? 

Mr. TiNDALE. We only want you to give the right to the composer. 
It is true that if this bill is passed, a talking machine or piano manu- 
facturer would not be able to reproduce certain pieces which might 
hereafter be acc^uired by another company; but instead of being a 
disadvantage this would be to the general advantage. The whole 
bill is for the encouragement and protection of the useful arts, and 
the manufacturer who found himself in that position would encour- 
age and stimulate other composers to write pieces as good or better 
that those belonging to his competitor. The mountains and valleys 
of America have produced and are producing in other fields as great 
men as ever have trod the earth. Why not the same in music ? Are 
we to have but one MacDowell, but one Sousa, one Herbert, and has 
all the good music been written that can be written? By no means. 
We can not yet claim to have counted and catalogued all the stars in 
the heavens. Until we have done that, I saj^ to you that the inven- 
tion of man has not yet exhausted the combinations of melody and 
harmony that can be made within the five lines and four spaces of 
the musical staff. They are practically without limit. Other Her- 
berts, other Sousas, and other MacDowells will produce melodies as 
sweet and harmonies as divine as any that have charmed the human 
ear; and they are entitled to our encouragement. Many of the 
w^orld's masterpieces of music have been written by men goaded by 
the stings of poverty. Is it not deplorable? Let us do a little better 
by our composers. Surely on the American plan of fair pay to all 
workers and producers we ought yet to create music better than the 
world has ever known. And for any manufacturer with unlimited 
means at his command to plead that he would not be able to get 
music the same or as good as his competitor is weak and it is there- 
fore un-American. 

The matter of rivalry therefore between the various manufac- 
turers would consist not only in who could produce the best machine, 
but who could obtain the oest music, both old and new. This is 
competition that is eminently fair, and it should be so. The progress 
of science and the useful arts spoken of in the Constitution could 
not be forw^arded in any better manner than in a good, healthy 
rivalrv between manufacturers along honest and equitable lines, as 
provided for in this bill. In a good, nealthy rivalry the public comes 
to its own. 

Besides, it must not be lost sight of that thousands of pieces of the 
world's best music are in the eminent domain and may be used by 
anyone who may wish to do so. A masterly collection, almost 
countless in numbers, is to-day open to any manufacturer. 

I believe that we should concede to vested interests so far as to 
ive all manufacturers free use of all publications now existing; 
>ut that from this time forward the composer should own his com- 


positions absolutely. He would be free to sell his mechanical instru- 
ment rights to one firm if he desired, or to sell it to several (as he 
probably would do in actual practice), according to whichever would 
be to his best advantage, or could withhold those rights entirely if 
he chose. This I hold to be fair, and the universal business laws of 
supply and demand would be left free to work equity and justice 
between all the parties. 

In conclusion, as to so-called vested interests, I for one am willing 
to make a concession. But no manufacturer can rise on this floor 
and claim that he has innocently and confidingly invested fortunes 
in manufacturing plants, believing that he would have perpetual 
right to the use of musical compositions without license or payment 
of royalty. Every manufacturer is, and must have been, aware that 
this point has been in litigation and that it has occupied the atten- 
tion of our courts for some eight or ten years past, having just now 
reached final decision. 

(The committee thereupon took a recess until 2 o'clock p. m.) 
The committee reassembled at the expiration of the recess. 


Mr. WiujAMS. Mr. Chairman and gentlemen, the Words and 
Music Club of America consists of about 200 members who are pop- 
ular-song writers. To be eligible to membership in this club an ap- 
plicant must have written a song which has been a hit. We have no 
music publishers in our cluj), and therefore you will understand that 
I am here only in the interest of the popular-song writers, who receive 
absolutely no royalty from their productions, although very often 
we write the song which is the hit of a particular reproduction. 

There is no use for me to go into detail about the subject you have 
already heard thrashed out before you. We would prefer, of course, 
exclusive right to our publications, but if a monopoly should be cre- 
ated we would stand to lose as much as anyone. 

Eepresentative Legare. In other words, you write the words to the 
songs, and if those songs were monopolized by one house you would 
be at the mercy of that one house ? 

Mr. Williams. Absolutely, and therefore we would have to have 
in view some provision to offset the idea of monopoly. 

The Chairman. Why would not a royalty do that? 

Mr. Williams. A royalty would do it. We are in favor of a roy- 
alty absolutely. We would prefer, of course, our exclusive rights, 
for the simple reason that in the future there may be illegitimate 
concerns that will crop up, and we would like to protect ourselves 
against them. However, we believe that some of the phonograph 
companies and self-playing instruments will use our songs and that 
they will pay us a profit, and that that will be better for us. Of 
course in the case of Mr. Herbert it is entirely different. He is a 
genius. He is a man whose work will live after him ; but we are men 
who just write the oniinary popular songs, and our songs do not live 
after us. The life of a song is very short, only about one year, and 
the life of a song writer is not much longer. I want to tell you that 
if he writes one nit in his lifetime he is pretty fortunate. 


after the meetings had taken place. From the trade-t>aper notices these meet- 
ings are held with closed doors in secret session, and the giving out of informa- 
tion by the participants is prohibited. 

We are aware that all the al)ove may l>e entirely a wrong report, and we write 
to you direct requesting you to explain to us whether these meetings are open 
to all with interests involved who may wish to attend, and if so, what arrange- 
ments could be made for obtaining advance notice of such meetings. It Is true 
we do not happen to belong to any of the organizations, but we wish at the same 
time also to inquire whether this debars us from talcing part in the hearhigs. 

We write you as a publishing house having interests at stalce equal to. If not 
greater than, any other American concern. 

Yours, truly, G. Schibmkb. 

[Taken from letter book 68, p. 485.] 

April 12, 1906. 
Mt .Dear Mr. Bacon : I understand from you that Messrs. G. Schirmer were 
members of the Music Publishers' Association. They now inform me that they 
are not. How about this? 

Faithfully, yours, Herbert Putnam, 

Librarian of CongresB. 
Mr. Walter M. Bacon, 

White-Smith Publishing Company, 62 Stanhope Street, Boston, Mass. 

[Stamped: "Secretary, April IG, 1906, received."] 

White-Smith Music Publishing Company, 

Boston, Mass., April IS, 1906. 
Herbert Putnam, Esq., 

Librarian of Congress, Washington, D, C, 

Dear Mr. Putnam : I am Just In receipt of yours of the 12th and hasten to 
reply. You are mistaken when yon say you understood from me that Messrs. 
G. Schirmer were members of the Music Publishers' Association. They are not 
and never have been. With reference to the membership of the Music Pub- 
lishers' Association, I will sjiy that we have all the publishers of any conse- 
quence of the country as members of the association, with the exception of 
Messrs. Scliirnier and the John Church Company, of Cincinnati. The first 
named are i)ecullar people, and for reasons of their own have always held aloof 
from any orjjanlzation. although they have acted with us and contributed here- 
tofore to any fund which has been raised for the general good of the trade — 
such, for instance, as the fund raised for the detection and punishment re- 
cently for counterfeiting music, as described by Mr. Burkan at the last con- 
ference. I have before me a coi)y of a letter written by them last April to our 
se<Tetary, when it was proiK)seil to secure the enactment of a new copyright 
law, and inclose copy of the same herewith. 

I also Inclose a copy of the constitution and by laws of the Music Publisher^ 
Association, Issued about two years ago. which gives a list of the officers, and 
on the back will be foiuid a list of the members of the association which, as I 
said before, includes all the music publishers of any consequence in the country, 
with the exception of the two named. 

In closing I might say confidently that It seems to be the Impression among 
the t ratio that the reason the Schirmer people do not favor a change in the 
copyright law is because they are fearful that a new law may restrict what 
their bushiess is largely made up of, namely, the reprinting of foreign music, 
which is noncopyright In this country, by the new law being so framed tliat it 
will encourage foreigners more frecpiently to secure protection in this country 
for their future works than tlH\v have done In the past. 

Yours, very truly, W^alter M. Bacon. 

Mr. O'CoNNELL. Changing the original frame of what I had to 
say, I come down to the (luestion which seems to be of the greatest im- 
portance here to-day, as to the constitutionality of the royalty feature 
in this bill. 


The chairman of the Senate committee, as well as the chairman of 
the House committee, will remember that in June, 1906, I was asked 
if the manufacturers whom I represented would be in favor of pay- 
ing the composer, and I said yes, if you will protect our business so 
that we can not be squeezed out. In December, 1906, when the same 
question was asked me, my position was exactly the same, and that 
was the position of my clients. To-day my position is just the same, 
and that is the condition of my clients. 

We do not object to paying a royalty, provided there is a fair field 
and no favor, and provided that the business can not be brought into 
the hands of one mdividual or one group of individuals. That is 
where we stand. 

Is this provision constitutional? One of the members of this 
committee requested Mr. Burkan to point him to some decision of 
some court which proved that such a provision would be unconsti- 
tutional. I venture to say, sir, that there is no such decision.* On 
the contrary, there is an expression by the Supreme Court in a case 
decided when John Marshall and Joseph Story were members of 
the court, in an opinion in which they concurred, which proves to my 
mind that such a provision would be constitutional. Let us see why. 

The Supreme Court in the decision in the White-Smith Company 
against the Apollo Company has held specifically that neither the 
composer nor his assigns have any right to a reproduction, except 
with regard to the multiplication of copies in the form of music 
sheets. The court has found, and has necessarily found, that an 
author or his assies or a composer or his assies have absolutely 
no property right in the productions by mechanical means that ap- 
peal to the ear and convey the musical idea to the brain through the 
ear instead of through the eye. 

If you now extend the domain of the copyright, so as to give the 
author a right under the bill to multiply copies in the way of ordi- 
nary sheet music and also to control their reproduction by mechan-. 
ical devices which convey the composition to the ear, there is abso- 
lutely no escape from the conclusion, it is as plain as that two and 
two are four, that you are creating an absolutely new property right. 

Something is said about the liberty to contract, provided for by 
the Constitution. It is true that there shall be liberty to contract, 
but to what does that relate ? It relates to such rights as a man has 
in existence. You could not to-day legislate a man's existing ri^ts 
out of existence, if thereby you worked any harm to a contract. But 
here you are creating a distinctly new property right, and in creating 
that right why have you not got the power to annex to it such condi- 
tions as you deem wise and expedient? Why can you not do that 
which you have always done in the copyright? 

The Supreme Court of the United States, in the case of Wheaton & 
Donaldson v, Peters & Griggs (8 Peters, 592), decided in 1834, uses 
this language : 

This right, as has been shown, does not exist at common law ; it originated, if 
at all, under the acts of Congress. No one can deny that when the legislature 
are about to vest an exclusive right in an author or an inventor, they have the 
power to prescribe the conditions on which such right shall be enjoyed ; and that 
no one can avail himself of such right who does not substantially comply with 
the requisitions of the law. 

I doubt if you can find plainer language in any decision. 


What would the contention of the other side mean ? It would mean 
that every copyright act you have ever passed since the year 1890, 
and there have l^en many of them, was unconstitutional because 
you have not' given an exclusive right. 

Does the word " exclusive right," as used in the Constitution, mean 
that when you enact for the first time a law under the enabling 
clause of the Constitution that you must then and there, at once, go 
to the full limit of your powers? That is what their contention 
means. . 

Their contention means further, if their construction of this consti- 
tutional provision is correct, that there is no business for the le^sla- 
ture to do. The Constitution and that particular clause of it are 
full and exact without the intervention oi any legislature. The con- 
tention, if you please, is one which, in my opinion, borders closely 
on the ridiculous. You have the power to go to a certain distance and 
the Constitution outlines the uttermost limit, beyond which you can 
not go ; but between this point and that it is for you to say now far 
you shall go. 

If you decide that you want to extend the copyright to reproduc- 
ing devices, it is for you to say what reproducing devices it shall be 
extended to. Suppose you say that you will extend it to phonographs 
but not extend it to music rolls, would my friends contend that such 
an exercise of your legislative power would be unconstitutional 
because you draw a distinction between the two? Clearly not, because 
that is a*^ matter within your discretion. 

Representative Law. Before you leave that proposition, I would 
like to know what, in your judgment, is meant by the word "ex- 
clusive " in the Constitution? 

Mr. O'CoNNELL. It is a word of limitation. It is the farthest line 
of demarcation, beyond which j^ou could not go. It also has, in 
opinion, another meaning, which is that the author is to have the ex- 
clusive right to pay or royalty. 

Kopresentative Leciare. Your idea is that Congress may grant the 
entire right at once, but if it does not go so far and grants a partial 
right it would not bo unconstitutional. 

Mr. O'CoNNELL. In so far as it has granted a right, that right is 

Keprescntative Law. So that word refers to the individual for 
whom the right was created. 

Mr. ()X\)NNELL. Yes ; if it were otherwise, what would be the neces- 
sity of passing laws al)out it. All you would have to do would be to 
meet here and at once register that construction granting, ipso facto, 
all rights then* and then, until the day of judgment, and you would 
never need to legislate again. 

Now, if yon please, Mr. Chairman, a good deal has been said here 
abont the composer. Von know that no composer took part in the 
conference. A good deal is said by the music publishers about the 
rights and wrongs of the composer, and a good deal is also said about 
what you ouglit to do for them in the way of a royalty. Perhaps a 
good deal of light will l)e thrown on that subject by what is stated 
by a lar^e nnisic publishing house, a member of the Music Publishers' 
Association, and one of the signatories to the ^'Eolian contract. I 
want yon to hear what thev have to say about composers generally. 
You have heard what Mr. Williams had to sjiy for the song writers 


he represents. I will give you the name of the writer afterwards, as 
my friends might be nervous if I gave them the name now. He says : 

I thoroughly agree with the song writer in this matter, for, as a matter of 
factt the general, popular song writer of to-day knows absolutely nothing of 
theory or harmony nor the practice of it. He can only whistle or "fake" a 
melody which some musician or arranger will *' put down '* for him and arrange 
for the piano. 

The popular song writer of to-day, as soon as he gets an idea, immediately 
goes to his publisher to tiave it arranged, and if he is reminded at the time of 
its being arranged that it sounds like such and such a song, he will endeavor to 
the best of his ability to prove to you that you are wrong in your contention, 
and, rather than lose his friendship (for, as a general rule, he is a valuable 
proposition on account of his ** reputation," and is much sought after by all 
reputable publishers), he is placated. 

publisher's rewrite melody. 

In forty-nine cases out of fifty the publisher generally has the entire melody 
rewritten by one of the arrangers, and when it is played over for the " com- 
poser " or " author " they immediately suffer with an enlargement of the 
cranium, forgetting entirely that there is hardly a sequence of the notes as he 
originally conceived it, and that the entire melody has been rearranged, notes 
cut out and others substituted. Nevertheless he gets all the royalties and credit 
for it, while the man who actually did the entire work gets from $1 to $2.50 for 
his labor. It generally depends upon the ability of the arranger as to what 
he will receive for arranging a pianoforte copy for publication. 

The " game " of writing popular songs is not what it used to be six or seven 
years ago; if a song became popular, it would make a fortune for the writer. 


Nowadays the royalties are so cut by the publishers that even though' a song 
is what is termed a " hit," the author gets very little out of it unless it should 
sell to the remarkable figures of, say, 500,000. If a song sells anywhere near 
r>0,000 copies the publisher tries to proclaim to the world that he has the lar- 
gest hit which has ever been on the market. The author gets from 1 to 3 cents 
I)er copy; if he Is unknown he sometimes gets 1 cent per copy. The "well- 
known " song writer gets about 3 cents per copy. He generally writes from 
1 to 50 songs before he ** strikes " a ** seller." 

As a rule popular songs are written by more than one person; the lyric is 
written by one person and the music by another, although there are exceptions 
to this rule. The royalties are generally divided between the author and 
composer, so it is easy to figure the "tremendous fortunes" the song writers 
of to-day are making. 

In many instances the words and music are bought outright by the publisher, 
the general price for this being from $5 to $50, all depending upon who the 
author and coni[x>ser are. 

If the space would permit I could safely mention over 100 songs that have 
all in a measure recently been successful and have " made money " for the 
publisher, but the author and composer received, figuratively speaking, nothing. 


Tho imitativo habit of some song writers and publishers of following a hit 
with a clieap imitation of same is criminal in its inception and is generally 
gottcMi (uit for the puri>osc of bewildering the public. In a measure it has a 
terulciK-y of destroying the value of the original song, which has become a hit. 

These vampires haven*t the genius nor thought to conceive an original idea, 
and generally feed upon the brains of others. 

This appears in the Music Trades of February 1, 1908, and is 
written by Nat I). Mann, of Chicago, the manager of the Witmark 

Representative Barchfeld. You would not put Victor Herbert in 
a class like that? 


Mr. O'CoNNELL. I put Victor Herbert in that class — God forbid ! 

Representative Barchfeld. You would not put De Koven in that 

Mr. O'CoNNELL. Do not ask me where I would put De Koven, or 
I will answer vou. 

Now, Mr. Chairman and gentlemen, although this is a matter 
which affects you gentlemen more than it affects us, still I want to 
put the matter before you and before the public regarding this cam- 
paign of misrepresentation which has been carried on by the other 
side at the instigation of our friends on the other side. I will say 
that the theatrical people who come here have disavowed to me that 
they had any connection with it, while the so-called " Friars " have 
been back of it all. 

The Friars is an association of what we commonly call " press 
agents," but they prefer to call themselves " publicity promoters." 
Some of their achievements are told in the columns of the daily 
papers around the city, about how a celebrated actress takes a milk 
bath every morning. If they would stick to their own line they 
perhaps would not do very much harm, but when they send circu- 
lars containing misrepresentations to members of Congress every- 
where, in a matter in which they have no direct pecuniary interest 
except as they are paid for their work, then it becomes of interest 
to know the facts in regard to the matter, and I will put into the 
record some of the things which show the connection of these gentle- 
men with this campaign. 

In the first place, you may not know it, but they sent out- broad- 
cast through the country, to every man they sent the formal circular 
to, a list of the members of the House and Senate of the Sixtieth 
Congress, and told them who to strike and where to strike. They 
also sent out a Umg form of letter, which I offer in evidence, and 
down at the bottom, in red ink, is this: 

Kindly uw* this matter and write a similar letter, in yonr own style, to the 
members of Congress in yonr State. If yon are not an author or composer, 
write as a sympathizer to the cause. Do it now. 

The gentleman who started this campaign is a man called Friar 
Abbott, assisted by Wells Hawks. I have here a letter addressed 
"To my brothers of the Friars," signed by Wells Hawks, which 
was sent broadcast through the country, asking for kindly coopera- 
tion with Mr. Victor Herbert as an honorary triar, and also a letter 
signed by Mr. Victor Herbert as president of the Authors and Com- 
posers' Copyright League, in which he states that further informa- 
tion, details, and copy matter will be furnished upon application to 
Mr. Reginald De Koven at 784 Knickerbocker Building, Broadway, 
New York. 

I now offer these letters in evidence. 

(The letters referred to are, by direction of the committee, in- 
serted ill the record, and are as follows:) 

[Postal card — The space below is for the address only.] 

To Reginald DeKoven, Esq.. 

//on. Secretary Authors and CompoMers' Copyright League of America, 
734 Knickerbocker Theater Building, Sew York, 


[Reverse side.] 

Date , 190—. 

To Reginald DeKoven, Esq., 

Honorable Secretary A, and C. C, L. of A. 

In response to your inquiries: 

We have no contract with the ^Eolian Company, or any other, for the exclu- 
sive right to our publications for mechanical instruments. 

In case you have a contract, please state here with whom and for what 

Our catalogue consists of approximately numbers. We have about 

authors and composers on our staff. 


Honorable Member of Congress, 

Washington, D, C. 

Dear Sir : I beg to call your attention to a matter of the greatest imi)ortance 
to me and a matter directly affecting every author, comiwser, and writer of 
music in the United States, which practically means the welfare and future of 
our American music and melodies. 

I refer particularly to the bill known as the Kittredge copyright bill, S. 2900, 
introduced in the Senate by Senator Kittredge, and specifically to the clause 
E In said bill. 

As one of your constituents and a resident of your State, I beg to trespass 
your time to explain my interest in the bill and the crying necessity for such 

Under the present copyright law, made and passed before phonographs, 
graphophones, talking machines, automatic piano players, etc., were thought 
of or invented, an author or composer is protected in his [)ublishlng and dra- 
matic rights, but absolutely no provision is made at protecting him from having 
his works, his creations, the result of his talent and ability, absolutely and liter- 
ally stolen from him without his i)ermission, consent, or even knowledge, and 
without one penny remuneration, by manufacturers of mechanical devices. 

This great wrong the Kittredge bill seeks to correct; and in this righteous 
cause I seek your aid, influence, and assistance. 

As matters now stand, what is the result? I see my comiiositions — as does 
each and every other author and comiwser in America — stolen bodily by the 
phonograph trust and piano-player combination, and ground out daily from 
thousimds of cylinders, disks, and rolls, without i>aying me or any of us one 
single, solitary i)enny, and in addition daily reducing the sales of sheet music, 
and therefore constantly reducing royalties on the sales of my publications. 

And I have only to lool^to you, Mr. , and your colleagues, as my repre- 
sentatives in Congress, to assist In i)rotecting me against such robbery, such 
unfairness, and such a terrible disadvantage. 

The phonograph trust and piano players combination have made millions 
upon millions of dollars, selling the product of the brain and genius of American 
composers and authors, without paying them one cent. Why should they not 
pay royalties? Why can they steal our property and take advantage of a 
technicality of the law to protect them?* Why should they be protected in sell- 
ing untold thousands of records, at a tremendous profit, without paying one 
single cent to the person who originated and comiwsed the composition and 
whose genius made [lossible the melodies which these trusts are vending? Why 
is this flagrant injustice to American authors and composers permitted to con- 
tinue? This robbery has gone on far enough, and the copyright law must be 
revised to meet present-day necessities. 

In opi>osition to the Kittredge bill — the square-deal copyright bill — I under- 
stand the lobby of the trust and combination urge two puerile objections. First, 
they say the Kittredge bill aims to assist a new monopoly. This is absolutely 
false. The foundation for such a statement is this: 

A few of the music publishers — and a very few indeed — made a contract with 
the ^^olian Company to grant them certain privileges and rights, covering a 
graduated period of from five to ten years. And, anyway, why should T. a 
composer, suffer from any contract some publishers may have made some time 
ago, especially when I have not tied up any of my rights to anyone and am free 
to make negotiations if protected by proper legislation. 


The consideration was that the .£olian Company was at their expense to 
conduct a test case covering the present copyright law to the United States 
Supreme Court and obtain a final decision on long and much-disputed ques- 
tions. This was all several years ago, and the whole agreement will shortly 
terminate by limitation. Does this smack of monopoly? And it is the only 
reason for their false and misleading cry. 

Secondly, the trust lobby urges that they, with their rolls and disks, popu- 
larize the music — ^to the author^s l>enefit. Tliis is only silly rot and without 
foundation. Did you or did any other man ever hear any tune from any 
mechanical devjce tliat was not already popular? Did anybody ever hear music 
from rolls or disks that liad not been made popular at the expense, time, and 
work of the author, composer, and publisher? And this is true in 90 per cent 
of the cases. 

And now, Mr. , I trust you will agree with me in the great need for 

this legislation, and I earnestly urge tliat you use your best efforts in the 
interest of American composers and the writers of our American songs and 

Please be good enough to let me hear from you, with your view^s in the 

With anxious hopes that you will support the authors and com'posers* bill 
introduced by Senator Kittredge, and assurance of respect and regard, be- 
lieve me. 

Very truly, yours, 

[In red ink.] 

Kindly use this matter and write a similar letter in your own style to the 
Members of Congress in your State. 

If you are not an author or composer, write as a sympathizer to the cause. 
Do it now. 

[The Globe and Advertiser, New York, December 18, 1907.] 


Washington, December IS, 
Senator Kittredge, who was chijrman of the Committee on Patents during the 
last Congress, and who continues his membership on that cfmnnlttee, lias intro- 
duced a bill on copyrights which diflPers in a material way from that introduced 
by Senator Smoot, the present chairman of the committee. 

Mr. Kittredge's bill gives to com[)08ers all rights over their com i)osit ions, so 
that owners of mechanical music machines and devices may not make use of 
any copyright composition without securing the consent of the composer. This 
provision does not exist in Senator Smoot's bill, under which such productions of 
compositions are not subject to the copyright law. 


Not since the days of the American Revolution has there been a measure so 
un-American, so unfair as the present copyright law as regards the relation of 
sound-reproducing instruments and comi>oser8. 

As the law now stands, and as the bill which Congressman Currier, of Xew^ 
Hampshire, for some unaccountable reason is trying to force throujjh, the 
manufacturers of phonographic records and r>(>rforatecl rolls can rei)ro(luce to 
any amount the musical composition of a com[K)ser without paying him a single 
cent for the product of his brains. 

This is doubly harmful to the men who give birth to the inusic of our coun- 
try, for, aside from the fact of their not getting: paid for the product of their 
brain, the reclvless manufacturing of ** canne<l music" — as .lohn riiilip Sonsji so 
aptly terms it — kills the sale of sheet music from which the composer ilerives 
his sole revenue, as the music publishers pay royalties on every sheet of music 
they sell. 

Not only do they [>ay these royalties, but they s|)end thousands of dollars in 
advertising and otherwise popularizing the musical coip[K>sition, As soon as 


they have gotten it before the public, and the sales are commencing to reach 
the stage where they are getting some of their investment back, and the com- 
poser is beginning to realize a little on the work of his brain, the " Talking 
Machine Trust " steps in, and with all the greed of a hungry wolf seizes upon 
the composition and turns out countless records and perforated rolls, thereby 
killing the sales, for it is a proven fact that as soon as the penny talking 
machines reproduce a musical composition it is dead as far as the public is con- 

The "Talking Machine Trust" claim that they do a great deal to make a 
song popular, but it remains for them to point out a single case where they have 
made a record of a musical composition before it has been popularized by the 
music publisher. 

Another thing this ** poor, persecuted trust " claims is that they can not afford 
to pay the 2 or 3 cents royalty on each record and roll without causing the 
** common people " to suffer. Yet they are enabled to pay the grand-opera sing- 
ers from 50 cents to $1 royalty on every record they sell reproducing their 
voice, for which they are charging good and plenty to the "common people," 
not caring whether the "common people" like it or not. Suffice to say, the 
" common people " have bought thousands of these $3 and $5 records, and have 
Itaid the monopoly tariff on them without a murmur (it would have done them 
no good to murmur). 

Not only does this law affect the prominent composer, but it hurts the un- 
known as well. One can never tell in the profession of song writing when 
the goddess of fame is going to knock at the door ; t>eside this fact, the music 
publishing business is suffering to such an extent at present that the firms thus 
engaged are cutting down the number of publications and are limiting their 
business to the better known composers, thus assuring themselves of some 
chance to get a return for their investment With a correction of the copy- 
right bill, such as Senator Kittredge proposes, conditions will be changed and 
the profession of musical XK)mposition will take a new life. 

Should the Currier bill triumph, the musical art and all other musical indus- 
tries in this country will languish, as the authors and composers, not receiving 
any royalties on records, and their royalties on sheet music decreasing from 
year to year, will have no incentive to write or compose. All the composers ask 
is a square deal. 

The Authors and Composers* 
Copyright League or America* 

[Authors and Composerg' Copyright League of America — Victor Herbert, president; John 
Philip Sousa, treasurer; Regfnald Do Koven, honorable secretary.] 

734 Knickerbocker Theater Building, 

New York.* 

Dear Sir : No doubt you are familiar with the fact that there is pending in 
Washington a copyright bill — the Kittredge bill, S. 2900 — favoring the payment 
of royalties to the author and composer on mechanical Instrument records. 

This bill is being strongly opposed by the mechanical instrument trust, who, 
because they have not been paying royalties In the past through a discrepancy 
in the present copyright law, do not want to do so in the future. To this end, 
they have trumped up a number of false charges, which, however, will be 
readily and successfully explained away before the joint patent committee in 
Washington in the near future. 

One of their meanest cries is that of "monopoly," they claiming that the 
music publishers have signed exclusive contracts with the ^olian Company of 
New York, and that, in the event of the passage of the Kittredge copyright bill, 
the said iEollan Company would have a monopoly, to the exclusion of other 
perforated roll manufacturers. 

As a matter of fact, the contracts that certain publishers have made with the 
MoMan Company are not contingent upon the passage or defeat of any copy- 
right bill, but rather upon the litigation that is now pending in the Supreme 
Court of the United States, and which is liable to be lost, thus abrogating and 
nullifying all such contracts. 

On the other hand, if the Kittredge bill is passed, every author and composer, 
including the many, many thousands not tied by exclusive contracts to any pub- 

39207—08 17 


lisher or publishers (there are hardly twenty-five in all so signed) will be 
justly benefited. 

We need your assistance in this connection, so that we can prove to those men 
sitting in Washington that there can be no monopoly on brains, and that the 
smallest minority possible have signed contracts with the JEolian Company, 
which they did in the best of faith. 

We want to prove that there are as many, and more, good and profitable cata- 
logues free and in the open market as there are signed. 

We want to prove that there is an overwhelming majority of authors and 
composers not exclusively tied to anyone. 

W^e want to prove that more publications are represented in the combined 
catalogues of those publishers not signed with the ^Eolian Company than ihose 
that are sigued. 

Will you kindly help us by immediately filling out the inclosed post card and 
returning the same to the address given? It will mean much to a great many, 
and can not legitimately hurt anyone. 

We might say for your information, tliat some of the largest houses, such as 
the John Church Comi)any, Breitkopf & Hartel, M. Witmark & Sons, Chappel 
& Co., Boosey & Co., as well as the younger houses, from which are emanating 
so many of the present-day popular successes, among them the Gus Eklwards 
Music Publishing Comimny, Helf & Hager, and York Publishing Company, are 
not tied by contract or otherwise to any talking-machine house. 

JThanking you in advance for your hearty cooi)eratlon in this most worthy 
and just cause, and awaiting your prompt reply, I am. 
Very truly, yours, 

Victor Hebbebt, 
President Authors and Composers* Copyright League of America, 

P. S. — We inclose you a little immphlet entitled ** Copyright legislation — an 
answer to the argument of the manufacturers of phonographs and other mechan- 
ical reproduction devices," by Harry D. Kerr, which fully explains away the 
false mouoix)ly charges of the mechanical-instrument trust. We hope you will 
read it carefully. We want to enlist your sympathy and cooperation. 

[The Friars — Rooms 1120-1121 Knickerbocker Theater BiiIldlnR, 1402 Broadwajv— 
(ienoral nttornoy nn<l counsel, Abraham L. .Jacobs, ao Broadway, New York. — -The 
abbot. Wells Hawks ; the dean. Charles Emerson Took ; corresponding secretary, 
I'hlMp Mindll : rerordlnpr secretary, Clinton W. Moflfatt; treasurer, John W. Uumsey. — 
Governors, Harry G. Sommers, Frank C. Payne, George W. Sammls, W. G. Smyth, 
Bruce Kdwards. W. M. UuU, Marcus H. Mayer, A. Toxen Worm, Wallace Munro, 
WlUard D. Coxey.J 

New York, January >, J908, 
To my brothers of the Friars: 

As your Friar abbot, my attention has l)oen called to a uuitter which, to me, 
Koeuis of the greatest iunM>rtaiire, and which I de<»m it uiy duty to present to 
each and every Friar, l)elievlnK that lie will realize its imi)ortance. 

I refer to the matter of the copyright legislation now oflfered and being agi- 
tatiHl in l)oth IIoiisi»s of Congress. As the law n«w exists, the author and com- 
lK>ser of our Auieriean songs and niehxlies are protecteil in their dramatic and 
publishing rights, but no provision is made to protect thein against the gigantic 
trust of the phonograi)h, graniaphone, and automatic |)iano player, the law, of 
course, having b«HMi enacted l)efore these inventions were heard of, with the 
result that thes*? combinations liave i)eiMi seizing and helping themselves to the 
creations of the genius and ability of American eomi>oser8 and writers without 
IMiying them any royalty whatever or without so much as asking i)erniission. 

I liave been shown by our l)rothers and friends who are l>eing st»riou8ly 
affe<*tcHl l)y this lack of legal protection that the future of tlieir profession, and 
almost the future of American music, is at stake. As the sale of disks, cylin- 
ders, and rolls increases, so dcHTeases the sale of sheet music, with a consequent 
decrease in royalti«»s: and royalties being the incentive to write, as the incen- 
tive grows less s<» will the merit and quality of the music depreciate. 

To right this terrible wrong and to s<H*ure honest protiK'tion where honest 
prottH'tion is due, the Kittredge co[)yright bill (S. 2900) lias been introduced, 
and has for its objwt the 8i)eciflc clauw* of prote<'ting American authors and 
conn)osers against the cruel piracy of the manufacturers of mechanical musi- 
cal instruments. 


It is in support of this bill (the Kittredge bill, S. 2900) that I urgently ask 
your support and cooperation, in the interest of ourselves, our brothers, and 
our friends, with the request that you write to all your Members of Congress, 
urging them to rally to the support of the Kittredge bill and to do all they 
can to secure the defeat of what is known as the Currier bill, a bill which 
has been introduced specifically denying authors and composers from all pro- 
tection of the copyright law in so far as mechanical instruments are concerned, 
and which bill has, of course, the undivided support of the mechanical instru- 
ment trust and combination. 

The Authors and Composers' Copyright League of America, which counts 
many Friars among its members, will be glad to furnish full particulars, lit- 
erature, and matter for newspaper items to all who apply to their honorary 
secretary, Mr. Reginald De Koven, 734 Knickerbocker Theater Building, 1402 
Broadway, New York. 

Fraternally, yours, Wells Hawks. 

Please sign and have filled by brother Friars and friends Inclosed page from 
our big {)etition and return immediately to me. 

[Authors and Composers' Copyright League of America — Victor Herbert, president; John 
Philip Sousa, treasurer; Reginald I)e Koven, honorary secretary.] 

7M Knickebbockeb Theater Building, Ncto York. 
Brother Friars : Through the kindness of the Friar Abbot, we are enabled 
to secure your valuable cooperation in this righteous fight for the passage of a 
bill that will secure to the authors and composers of our American melodies the 
rights to which they are justly entitled. 

We take the liberty of asking that each of you take this matter up with your 
newspaper friends and theatrical acquaintances, and endeavor to secure the 
publicity and space that this meritorious camiuiign deserves. 

We understand that at a recent meeting of the Friar^s it was officially decided 
to espouse this worthy cause, and to render all assistance within the power of 
the members of this organization. And a committee was also appointed to take 
the matter in charge. 

We will cheerfully furnish further information, details, and copy matter upon 
application to our secretary. Mr. Reginald De Koven, 734 Knickerbocker Build- 
ing, Thirty-eighth street and Broadway, New York. 
Fraternally, yours, 

Victor Herbert, 
President Authors and Composei's' Copyright League of America, 

Mr. O'CoNNELL. It is but fair to say that Mr. Johnson, representing 
the dramatic producers and manufacturers, disavows all this. 

Representative Legare. I would like to put in evidence here one of 
those letters from a publishing house refusing a manuscript, showing 
that in all likelihood this same manuscript will be accepted if they 
can reach their Congressmen and pass the Barchfeld and Kittredge 

(The letter referred to is, by the direction of the committee, 
inserted in the record and is as follows:) 

[Joseph W. SterD & Co., music publishers — Importers and manufacturers of musical 
iDStrumeutB and merchandise.] 

Nos. 102-104 West Thirty-eighth Street, 

Ncto Yorkt February 5, 1908. 
Dear Sib : We regret to say that we can not consider the Incloaefl manuiwript 
at tlie present time, for the reason that we are putting out very few songs now 
on account of the condition of the copyright law regarding phonographs, eelf- 
playiDg pianos, etc. 


You know that the phonograph companies make thoasanda of records of the 
best pieces without considering the composer or the publisher. In other words, 
they practically use the successes without asking permission and withoat pay- 
ing anything for the same. 

This is a great injustice, and as soon as it is remedied the publisher will feel 
a great deal more like accepting new manuscripts. There is now a new copy- 
right law in Congress which will make the phonograph companies and the 
makers of mechanical instruments pay a small royalty for the use of the same. 

Every writer and composer should do their utmost to see that this law is 
riassed, as it will benefit every composer in the country. If you will take the 
trouble to write to your Congressman explaining the matter and tell him that 
the condition of the music publishing business is such that you cau not get 
your manuscript accepted simply on account of the present copyright law, we 
are sure that your Congressman will see the justice of the thing and will sup- 
l)ort the new bill. 

Very truly, yours, Jos. W. Stebn & Ca 

Representative Currier. The little composers all over the country 
have Deen sandbagged by the sending of tnose letters. 

Mr. O'CoNNELL. A great deal hasoeen said by Mr. Burkan to the 
effect that the ^olian contracts have been abrogated by the decision 
in the White-Smith suit. That is interesting in view of the fact 
that thiB ^^olian representative refuses to abide by that statement. 
The peculiar thing is that in making their contracts with all of the 
publishers they made two contracts. The contracts come in sets of 
two. The "Wliite-Smith decision does absolutelv abrogate con- 
tract No. 2, which Mr. Burkan read to you. They both bear date on 
the same days, and that decision leaves contract No. 1 absolutely 
intact. In the preamble under a whereas there is a reference to copy- 
rights for musical compositions. It refers to copyrighted musical 
compositicms of which the publisher is the proprietor and those other 
musical compositions which may hereafter be protected by copyrights. 
Then further down in the clause is a provision that the publisher 
transfers to the .-Eolian Company — 

the oxcliislvo rijrlit for all iH»rforato<l uui8ic sheets of the kinds aforesaid, in and 
to all tlie eop.vrijrlited imisical coniiH)sltionK, of whieh the publisher is the pro- 
I)riet(»r, or in the cas** in which he is tlie owner of any less rights to the extent 
of said ri>;hts, and does heiehy covenant and aj^ree with the .l)olian Company 
to pive and secnre to it the exclnsive right in like manner for all [>erforated 
ninslc sh(H*ts of the kinds aforesaid in and to all of tliose other musical compo- 
sitions which may hereafter he protected by copyright, and the copyrights or 
rights in which may be acqnireil by the publisher. 

Does not that mean future copyrights, under whatever law they 
miw be issued. 

I will not burden you with going into the question as to what the 
effect of this would he. except as to one thing. By this competition 
in the perforated roll field, the JEolian Companv has had to cut the 
price of its rolls in half. I have a catalogue of the J'^olian Company 
in lt)01 and I have a late catalogue for 1905. For the purpose of 
conij)arisoii I have marked the first two pages of the 1901 catalogue, 

i'ust to show you how the prices have been cut in the 1905 catalogue. 
Cvery single one of them is cut exactly in half. 

1 have here also a little table showing the present prices charged 
by other houses, and you will find that the Connorized JVIusic Com- 
pany are a fraction lower in each instance than the .^olian Com- 

If you put this monopoly into their hands, how long will they keep 
the [)ri('es at the present figures? If competition has cut prices, 
what will happen if you relieve them of that competition? 


Representative Leake. Is there not a monopoly put into the hands 
of every publishing house which receives from an author the exclu- 
sive right to publisn a book? 

Mr. O'CoNNELL. There is a monopoly as to that particular copv- 
right and that particular book ; but if you find the owners of all the 
copyrights in the United States agreeing that they themselves shall 
hold all of those copyrights for their common benefit, the public 
would be in a sorry plight. 

Representative Leake. Is not that possible under the present law 
relating to books? 

Mr. O'CoNNELL. Anything is possible; but are you going to per- 
mit it? 

Representative Leake. Is it not possible under the law now, and 
under this present bill if you pass it? 

Mr. O'CoNNELL. Not if you nave the universal royalty. 

Representatiye Leake. With respect to books? 

Representative Lboabe. If one house controlled all the books that 
were published the prices would be apt to go up. 

Mr. O'CoNNELL. They certainly would. 

Representative Leake. Is it not possible for all of the people who 

f)roduce books to get together ana agree to have those books pub- 
ished by one house, and then could not a monopoly grow up ? 

Mr. O'CoNNELL. That is unquestionably so. 

Representative Leake. There is no provision in this law against 

Mr. O'CoNNELL. Not that I know of. 

Representative Currier. There is a provision against that to a 
certam extent in the importation clauses, which, if such a condition 
as you describe should prevail. Congress would be very apt to widen. 

Representative Leake. Congress has allowed the same condition 
to grow up with respect to books. 

Mr. O'CoNNELL. I will answer you in this way in regard to the 
book industry: If a monopoly of that kind on books were possible, 
it would simply affect the books published. There is no other indus- 
try depending upon that book at all. With reference to the player 
piano, the other essential part of it, in order to operate it, is the roll 
which produces the music. The cost of that apparatus to produce 
the music is very small. The roll itself will cost but a dollar and 
a quarter or a dollar and a half, while the machine will cost a couple 
of hundred dollars; but if you monopolize the rolls, you not only 
monopolize the roll business, but you monopolize the piano-manu- 
facturing industry, in the hands of one concern. 

Suppose I have a store in which I am selling player pianos and 
the monopoly has a store next door. It costs me as much to play 
my player as it costs them and I can only ^t such rolls as I can 
procure outside of the combination. They will not sell me any, but 
a customer can get all of the rolls he wants, all of the modern pieces, 
from them. A purchaser comes into my store and he finds that I 
can only sell him a few rolls and you can sell them all. Where 

would he buy— certainly not from me. 
The trouble is that through 

A one little feature of the industry they 
seek to control an entire industry in which $70,000,000 of capital are 
invested. In the book trade, when you have monopolized tne book, 


there is nothing over and above that which you can monopolize; 
but in this case when you monopolize the $1 music roll you are also 
monopolizing the $250 player. 

Representative Leake. The reason books have not been monopo- 
lized by one publishing house is undoubtedly because new authors 
are coming to the front all the time. 

Mr. 0'03NNELL. The narrow question is whether the owner of a 
copyrighted book can put a notice in it and sav that it must be sold 
for less than a certain price, and then if somebody buys it and sells 
it for a less price he infringes the copyright law. 

Another thing to show how these people seek to monopolize the 
industry is this theory of contributory infringement; which, of 
course, you gentlemen are very well informed about. All of the 
players that the ^oHan Company put out now have a restrictive 
license noted on them which says " our player must only be used for 
music cut by us." Some outsider sells a roll for use in that machine 
and they promptly cut off the outsider, bring him up in court, and 
get an injunction against him for contributory iniringement. If 
they can apply that principle to the player and restrict the player to 
be used only with the ^^olian rolls, why can th^ not put a notice 
on their rolls and say the rolls which we make must not be used 
except on the -^olian players. The circuit court of appeals has 
affirmed that doctrine of contributory infringement. 

Bepresentative Leake. What is the position of your clients now? 
Are they in favor of the law as it stancls, or are they in favor of this 

Mr. O'CoxNELi.. We have never looked for legislation, but if you 
must legislate, we will take the universal royalty as a general scheme, 
under proper safeguards, of coui*se. 

Xow, with regard to what the composers usually get from the pub- 
lishers, when tney have a royalty agreement. In the record or the 
White-Smith suit a composer testified who had apparently gotten out 
a great many publications, and he testified that his first great success, 
which was published on a royalty twenty-eight years ago and which is 
still selling to-day, netted hini $11; that his great song, " \Mio will 
buy my roses red?" which sold to the amount of 100,000 copies, 
netted him $83; that his great composition, "World's Exposition 
March," netted him $5; that the " Cadet Two-step," of which 50,000 
copies were sold, netted him $4, and so on ad infinitum ; and that out 
of l,r)00 compositions he had probably earned $5,000. 

Representative Ci rrier. Mr. Sousa testified here that he sold one of 
the most popular compositions he ever wTote for $35. 

Mr. OCoNNELL. A question was asked by Mr. Currier of Mr. 
Klein, whether he thought the State courts would give him ample 
relief. The common law gives very stringent relief by way of in- 
junction, in cases of unfair competition. 

I do not think it is necessary for me to call the attention of the 
committee to the condition of the copyright laws in England, Bel- 
gium, Switzerland, France, and Italv. As a matter of fact, the Su- 
preme Court its(»lf points out very clearly what the result of the last 
Berne convention in 1886 was, and how the companies signatory to 
that agreement were bound by it. You know what the law in Eng- 
land is to-day and what the law iii Germany is. 


Eepresentative Currieb. Has any country on earth ever passed an 
act to prevent the reproduction of music by means of a phonograph, 
or is there a country on earth that has legislated on the subject, which 
has not provided that that shall not be an infringement? 

Mr. O'CoNNELL. There is no such country, sir. There have been 
countries — in Germany, for example — where they did attempt to leg- 
islate on the subject. 

Representative Currier. I am speaking about phonographs. 

Mr. O'CoNNELL. No, sir. 

Representative Leare. What about mechanical musical devices? 

Mr. O'CoNNELL. They all come in under the same category. If 
you get a music box, the principle is the same. 

I want to refer you now to the Piano and Orsan Purchaser's Guide, 
to show the component parts of the -^olian Company, and vou will 
understand in a moment why I do this. It is the guide K)r 1908, 
and contains a statement showing what companies the ^olian Com- 
pany controls and what it manuiactures. 

JEolian Company. — Incorporated. Capital, $500,000; surplus, over $2,000,000. 
H. B. Tremaine. president; C. M. Tremaine, vice-president; E. S. Votey, secre- 
tary; William E. Wheelock, treasurer; H. M. Wilcox, assistant treasurer. 
Directors : H. B. Tremaine, C. M. Tremaine, E. S. Votey, E. R. Perkins, F. G. 
Bourne, H. M. Wilcox, G. W. Curtis, Robert Maxwell. William E. Wheelock. 
This concern Is controlled by the JEollan, Weber Piano and Pianola Company, 
which has a capital of $10,000,000 and is a concern of international standing 
and reputation. (Refer to it in piano department) Factories at iEollan, 
N. J. ; Merlden, Conn., and Worcester, Mass. Retail warerooms. Fifth avenue, 
near Thirty-fourth street. New York, where they have recently erected a mag- 
nificent home, which is universally acknowledged to be the most unique, com- 
plete, and artistic establishment of the kind in the world. Manufacture the 
"iEollan," or self-playing pneumatic reed-organ, which has been indorsed by the 
most prominent musicians, artists, scientists, and the leaders in social and 
business circles both In this country and abroad. The late Queen of England, 
the Pope, and other distinguished personages have purchased these Instruments. 
Their goods are sold by leading and representative dealers all over the United 
States. Also make the " pianola," for which refer under pianos. Financial 
and commercial standing of the company unquestioned. 

kalian, Weber Pianq and Pianola Company. — Incorporated with a capital 
of $10.0(K),000. Three million five hundred thousand dollars preferred stock 
and $6,500,000 common stock. President, H. B. Tremaine; vice-president, 
Atherton Curtis; treasurer, WUllam E. Wheelock; secretary and assistant 
treasurer, B. S. Votey. Directors: Harry V. Tremaine, Atherton Curtis, Wil- 
liam E. Wheelock, Edwin S. Votey, Fred G. Bourne, G. Warrington Curtis, 
Robert Maxwell, Charles M. Tremahie, Edwin R. Perkins, H. W. Beebe, John 
W. nines, James A. Coflta, George B. Kelly, F. L. Young. General offices. No. 
302 Fifth avenue. New Tork. Factories: Worcester, Mass.; Merlden, Conn; 
New York City ; -l^ollan, N. J., and Gotha, Germany. This company was formed 
to own and control the following manufacturing and operating companies : The 
^ollan t^onuwiny, manufacturers of the cerlola, eeollan orchestrelle, the pianola, 
metrostyle pianola, pianola piano, and the feollan pipe organs ; the Weber Piano 
Company, manufacturers of the Weber piano; George Steck & Company, manu- 
facturers of the Steck piano; the Wheelock Piano Company, manufacturers of 
the Wheelock piano; the Stuyvesant Piano Company, the Vocalion Organ Com- 
pany, the Votey Organ Company, the Orchestrelle Company, of Great Britain; 
the Choral Ion Company, of Germany and Austria ; the Orchard-Land Company, 
and all the branch houses of these various corporations. The iEolian, Weber 
Piano and Pianola Company was organized In order to secure a more efficient 
and economical management of the large, diversified, and International In- 
terests of the various corporations which compose It. In December, 1904, 
It acquired the ownership of and all rights, title and Interest in the old es- 
tablished and distinguished house of George Steck & Company, manufacturers 
of the *' Steck piano.*' This company owns and operates a large factory in 


Gotba, Germany, where the Steck piano Is made for the continental market 
Financial and commercial standing unquestioned. 

^riola.— The "^Eriola " is a cabinet piano player made by the ^Eolian Com- 
pany (to which refer), a popular and reliable player, one of the numerons and 
excellent line of instruments of this noted house, designed to meet the demand 
for a popular-priced player. Also refer to .£olian, Weber Piano and Pianola 

Notwithstanding that the provisions of the Berne convention of 
1886 provided that mechanical reproducing devices sdiould not come 
under the domain of the copyright, the German courts, in 1900, de- 
cided that a phonograph recoradid come under the copyright act. 
The legislature at once took up the question and reversed the de- 
cision of the court. They brought in a sweeping law, covering every- 

At the last moment a little joker was put in, to the effect that de- 
vices which expressed, if I may use the term, the expression of the 
piece are not free. The JEolian Company has always claimed that 
they produced expression, and that they are the only ones who could 
produce expression. There were no other manufacturers of piano 
plajers in Germany at that time, so there was no opposition to the 
claim, and so that provision was put in the law because it did no 
damage. The result is that if you have a piano player to sell and 
claim for it that you can get expression from it, you have got to go 
to the captain's desk and settle. If you admit that it does not give 
expression, and that it is purely mechanical, you keep your player 
in your show window until it becomes molded. What is the result? 
They come to the captain's desk and settle. 

Now, gentlemen, we have not come here looking for copyright leg- 
islation. We are here to protect our rights. The people 1 represent 
only want a fair field ana no favor. They do not cut music. They 
do not make records, but they want an open market to buy it in. 

It will obviate all objections, and everyl)ody will be protected, if 
you adopt the provision for a universal royalty. That will satisfy us. 

The Chairman. Mr. Pettit, you have been allotted a half hour. 


Mr. Chairman and gentlemen of the committee, I appear here on 
behalf of the Victor Talking? Machine Company. Mr. Walker, who 
rej)res(»nts the C(mnorized Music Company, will also speak in behalf 
of the interests of the Victor Company. 

I wish to say a few words, primarily, so that the Victor Company's 
position shall not be misunderstood. At a former meeting of the 
committee the Victor Company did not oppose the then presented 
bill, but I suggested an amendment providinjjj for a copyright of 
individual records, provided this ccmimittee l)elieved that such a pro- 
vision, subjecting talking machines to protection under a copyright 
act, was constitutioiuil. 

I want to say to the committee that, since reading and studying 
the Smoot and Currier bills, our position is that we are in favor of 
the bills as they are presented; and T do not know that we have 
any suggestions to nuike other than those that have already Ix^en 


The decision of the Supreme Court of the United States in the case 
of AVhite-Smith v. The Apollo Company, recently decided, to my 
mind very strongljr indicates that the court does not consider the sub- 
jection of musical instruments to a copyright act to be constitutional. 

The Chaibman. Would you object to the royalty proposition ? 

Mr. Pettit. I want to say that I am doubtful as to the constitu- 
tionality of a clause in a copyright bill subjecting talking machines 
to the copyright act. If this committee should, however, see fit under 
the circumstances to incorporate a compulsory license clause and be- 
lieves that such a bill subjecting mechanical instruments to the copy- 
right law is constitutional, then we will fall in line very gracefully. 
If that provision of the law is settled favorably in your minds, we 
will not oppose it. 

I doubt whether a compulsory license clause would be entirely with- 
out question, and yet it the other question should be decided, that 
musical instrument copyrights are properly and constitutionally sub- 
ject to the copyrirfit law, we woula raise no question regarding com- 
pulsory license. The Victor Company does not occupy the position 
of a pirate in this proposition^ We would like the committee to fully 
understand our position. 

The talking machine interests were established, and the Victor 
Company's interests were established, under patent rights granted by 
the Government of the United States, ana under those exclusive 
rights granted this company, as other companies, have built up a 
large business and have spent several million dollars in its plant, its 
patents, and in its establishment generally. The copyright, proposi- 
tion is a new one which comes up after the Victor Company and some 
of the other companies have established their plants and have acted 
in good faith and put their good money in the enterprise ; and, in fact, 
the Victor Company very carefully inquired into the proposition as to 
whether or not they were invading any legal copyrights or any rights 
of copyright holders under the law. It also went so far as to try to 
register its records in the 9opyright oflB^ce here in order to test the 
question of records made by it m order to protect itself in the owner- 
ship of certain particular records, for which it paid to the talent for 
some as much as a thousand dollars a selection, and which I say it 
attempted to register here in the copyright office, but registration 
was refused as not copyrightable matter. 

The Chairman. That was done, however, for this purpose — that in 
case this White-Smith suit was decided in favor of the Apollo Com- 
pany you would have the popular pieces in the office of the Librarian 
on which you could immediately secure copyright. 

Mr. Pettit. No, sir; it was not done with that intention. We 
made an attempt several years ago, I think, through Mr. Berliner, 
with one of the disk records, to test the question. Our position, there- 
fore, is entirely one of fairness, and we are not in the position of 
having come into this business to attempt to steal or purloin any 
rights of any composer. 

Representative Barchfeld. Would you allow anyone to use your 
patent on the payment of a royalty ? 

Mr. Pettit. No, sir ; I do not think that we would. 

Representative Ci rrier. If you were an inventor and that was the 
only way you could get your patent, you would? 


Mr. Petttt. Perhaps. I would like to refer to some of the ques- 
tions analogous to that. 

Senator Brandegee. You say you do not want to take anybody's 
composition without paying for it ? 

Mr. Petttt. I say we are not here in any position of unfairness. 
After considering tne question from all points we proceeded, and this 
attempt of authors to bring us within the copyright law is one of re- 
cent date. 

Senator Brandegee. But, as a matter of fact, you do not pay 

Mr. Pettft. We pay Caruso, as an illustration, as much as a thou- 
sand dollars, perhaps, to sing for us one selection. 

Senator Brandegee. But you are at liberty at present to transpose 
anybody's music, under the law ? 

Mr. Pettit. Exactly. That is the position as we understand the 
law to-day, and the question to-day before this committee is whether 
the law can be changed under the Constitution to make these ma- 
chines subservient to the copyright act. 

Senator Brandegee. But that is the thing that these other people, 
the composers, call pirating, is it not ? 

Mr. Pettit. Yes; thev say that, but we pirate nothing. 

Senator Brandegee. But* you say you do not want to do any 

Mr. Pettit. I say we want to do what the committee considers 
right — and what we are legally obliged to do. 

Senator Brandegee. Are you obliged to pay them royalty ? 

Mr. Pettft. I was coming to that. The view I wish to express 
to the committee is that I have a grave doubt as to the constitution- 
ality of any such act. Article 1, section 8, of the Constitution of the 
United States provides for two things. It provides for the protec- 
tion of authors in their writings and for the protection of inventors 
for discoveries. 

Xow, I wish to submit to the committor, especially in the light of 
the decision in the case of White-Smith against Apollo Company, 
that it was not the intention of the Constitution to bring mechanical 
instruments within the purview of the copyright act or of an act 
for the protection of authors to prevent the copying of their writings. 

Turning now for a moment to the decision in the Apollo case, I 
would like briefly to call attention to the indications on the part of 
the Supreme Court of the Ignited States that it does not regard me- 
chanical mechanisms as within the purview or the i)rovince of copy- 
right. I think your committee will want to consider this proposition, 
because if it should appear to be unconstitutional you would not want 
to do anything that would be subsequently upset by the Supreme 

Representative Currier. You are not referring now to the com- 
pulsory license matter, but to the question whether this is a copyright 
at all f 

Mr. Pettit. Yes; in the first place, the court reverts to the deci- 
sions in three cases where these mechanical instruments, the talking- 
machine records, and the organs and perforated rolls had been before 
the courts. These cases are, Kennedy r, McTammanv (83 Fed. Rep., 
584) ; St^n v. Kosey (18 App, D. C, 502), and t;he English case 


of Boosey v. Whight (1 Ch., 836; 80 L. T. R., 561). The Supreme 
Court said that while thef^e decisions are not binding upon the court 
as testimony, they make a bearing which must be considered. The 
courts in those cases evidently construe what a talking-machine record 
and what a perforated roll is. Judge Cole, in the case against Ken- 
nedy, which is cited in the decision, held that a perforated sheet of 
music is a part of a mechanical instrument, and not, therefore, within 
the purview of the idea of copyright. 

The Chairman. But within the purview of the patent law ? 

Mr. Peitit. Yes, and the case of Stern against Rosey, also cited 
in the Apollo case, was to the same effect. That was also a case 
where phonograph records were alleged to infringe the copyright 
law. There tne court said the same thing, that they were mecnanical 
devices, and did not come within the idea of copyright. So, also, in 
the case of Boosev v. Whight the court said that to play an instru- 
ment with a perforated sheet, which itself is part of a mechanism 
which produces the music, is quite another proposition — that it is 
not a sheet-music proposition. In other words, these three decisions 
are to the effect that these things are mechanical instruments, and 
that talking-machine records and perforated rolls are pieces of me- 
chanical mechanisms. The talking-machine records, for instance, 
are made with lateral and with vertical grooves, and the stylus which 
operates in the record groove bv these undulations is mechanically 
operated up and down or goes back and forth, as the case may be, 
and passes through the entire spiral groove, vibrating up and down 
or back and forth until the selection is completed. The stylus vi- 
brates mechanically by the cam-like action imparted by the record 
groove. The sound record is a piece of mechanical mechanism, as 
IS also the perforated roll in operating the valves of the organ. 

There is, I say, a strong indication on the part of the Supreme 
Court in quoting these decisions referred to that a sound record 
comes withm the purview of " inventions " under article 1, section 8, 
of the Constitution, and not under " writings " relating to the pro- 
tection of authors. 

Representative Legare. Give me the book and page for that. 

Mr. Pettit. They are all cited in the decision of the Supreme 

The Chairman. You would not object to having the decision of 
the Supreme Court in the White-Smith v. Apollo case put in the 
record f 

Mr. Pettit. Certainly not. I will now offer the decision in that 
case of Wliite-Smith against Apollo Company. 

The decision is as follows : 

Supreme C'ourt of the United States. Nos. 110 and 111. — October term, 1907. 
White-Smith Music Publishing (Company, appellant, v. Apollo Company. On 
appeals from and writs of certiorari to the United States circuit court of 
api>eal8 for the second circuit. February 24, 1908. 

Mr. Justice Day delivered the opinion of the court. 

These cases may be considered together. They are appeals from the judg- 
ment of the circuit court of appeals of the second circuit (147 Fed., 226), affirm- 
ing the decree of the circuit court of the United States for the southern dis- 
trict of New York, rendered August 4, 1905 (139 Fed., 427), dismissing the 
bills of the complainant (now appellant) for want of equity. Motions have 
been made to dismiss the appeals, and a petition for writ of certiorari has 


been filed by appellant. In view of tbe nature of tbe cases tbe writ of certio- 
rari is granted, the record on tbe appeals to stand as a return to the writs. 
Montana Mining Co. v. St Louis Mining Co. (204 U. S.» 204). 

Tbe actions were brougbt to restrain infringement of tbe copyrights of two 
certain musical compositions, published in the form of sheet music, entitled, 
respectively, ** Little Cotton Dolly " and ** Kentucky Babe." Tbe appellee, de- 
fendant below, is engaged in the sale of piano players and player pianos, known 
as the ** Apollo," and of perforated rolls of music used In connection therewith. 
The appellant, as assignee of Adam Gelbel, the composer, alleged compliance 
with the copyright act, and that a copyright was duly obtained by it on or about 
March 17, 1897. Tbe answer was general In its nature^ and upon tbe testimony 
adduced a decree was rendered, as stated. In favor of tbe Apollo Company, de- 
fendant below, appellee here. 

The action was brought under the provisions of the copyright act, section 
4952 (3 U. S. Comp. Stat. Sup., 1907, p. 1021), giving to the author, inventor, 
designer or proprietor of any book, map, chart, dramatic or musical composition 
the sole liberty of printing, reprinting, publishing, completing, copying, execut- 
ing, finishing and vending the same. The circuit courts of the United States 
are given Jurisdiction under section 4970 (3 U. S. Comp. Stat., 3416) to grant 
injunctions 4iccording to the course and principles of courts of equity In copy- 
right cases. The appellee is the manufacturer of certain musical instruments 
adapted to be used with perforated rolls. The testimony discloses that certain 
of these rolls, used In connection with such instruments, and being connected 
with the mechanism to which they apply, reproduce In sound the melody recorded 
In the two pieces of music copyrighted by the npi)ellant. 

The manufacture of such Instruments and the use of such musical rolls has 
developed rapidly In recent years In this country and abroad. The record dis- 
closes that In the year 1JK)2 from seventy to seventy-five thousand of such Instru- 
ments were in use in the United States, and that from one million to one million 
and a half of such perforated musical rolls, to be more fully described hereafter, 
were made In this country In that year. 

It Is evident that the question Involved In the use of such rolls Is one of very 
considerable lmi)ortance, Involving large property Interests, and closely touching 
the rights of coni|>08er8 and music publishers. The ease was argued with force 
and ability, orally and upon elaborate briefs. 

Without entering into a detailed discussion of the mechanical construction of 
such Instruments and rolls, It Is enough to say that they are what has become 
familiar to the public In tbe form of mechanical attachnients to pianos, such as 
the pianola, and the musical rolls consist of perforated sheets, which are passed 
over ducts conuected with the operating parts of the mechanism in such manner 
that tbe same are kept sealed until, by means of perforations In the rolls, air 
pressure is admitted to the ducts which operate the pneumatic devices to sound 
the notes. This Is done with the aid of an oiHjrator, upon whose skill and ex- 
perience the success of the rendition largely depends. As the roll Is drawn over 
the tracker bonrd the notes are sounded as tbe i)erforations admit the atmos- 
pheric pressure, the perforations having been so arranged that the effect Is to 
produce the nieUxly or tune for which the roll has l)t»en cut. 

Si)eakinjr in a general way, it may be sjiid that these rolls are made In three 
ways. First. With the score or staff notation before hlni the arranger, with 
the aid of a rule or guide and a graduated schtnlule, marks the position and size 
of the perforations on a sheet of paper to correspond to the order of notes in 
the composition. The marked sheet is then passed Into the hands of an operator 
who cuts the apertures, by hand, In the paper. This perforattnl sheet Is In- 
s[KH.'t(Hl and corrwttHl, and when corn»cttHl Is called "the original." This origi- 
nal is us«m1 as a stencil and by passing Ink rollers over It a pattern is prepared. 
The stencihHl i>erforatIons are then cut, producing the master or templet. The 
master is placeil in the perforating machine and reproductions thereof obtalneil, 
which are the iKTforated rolls In question. Expression marks are separately 
copitHl on the perforated music sheets by means of rubixT stamps. S«H.*ond. A 
I)erforat(Hl music roll made by another manufacturer may be u.sed from which 
to make a new nn'ord. Third. By playing upon a piano to which is attached 
an automatic nn-ordlng device prcKluclng a i)erforated matrix fnmi which a 
IMTforatcMl music roll may be prcKluced. 

It is evident, therefore, that jwrsons skilled In the art can take such pieces of 
she(>t music In staff notation, and by means of tbe profK^r Instruments make 
drawings indicating the lierf orations, which are afterwards outlined and cut 


upon the rolls In such wise as to reproduce, with the aid of the other mechanism, 
the music which Is recorded In the copjrrlghted sheets. 

The learned counsel for the parties to this action advance opposing theories 
as to the nature and extent of the copyright given by statutory laws enacted 
by Ck)ngres8 for the protection of copyright, and a determination of which is 
the true one will go far to decide the rights of the parties in this case. On 
behalf of the appellant It is insisted that it is the intention of the copyright 
act to protect the intellectual conception which has resulted in the compilation 
of notes which, when properly played, produces the melody which is the real 
invention of the composer. It is Insisted that this is the thing which Ck>ngress 
intended to protect, and that the protection covers all means of expression of 
the order of notes which produce the air or melody which the composer has 

Music, it is argued, is Intended for the ear as writing is for the eye, and 
that it is the Intention of the copjrright act to prevent the multiplication of 
every means of reproducing the music of the composer to the ear. 

On the other hand, it is contended that while it is true that copyright stat- 
utes are Intended to reward mental creations or conceptions, that the extent of 
this protection la a matter of statutory law, and that it has been extended only 
to the tangible results of mental conception, and that only the tangible thing is 
dealt with by the law, and its multiplication or reproduction Is all that is pro- 
tected by the statute. 

Before considering the construction of the statute as an Independent ques- 
tion, the appellee invokes the doctrine of 8tare decisis in its favor, and it is its 
contention that in all the cases in which this question has been up for judicial 
consideration it has been held that such mechanical producers of musical tones 
as are Involved in this case have not been considered to be within the protec- 
tion of the copyright act; and that, if within the power of Ckingress to extend 
protection to such subjects, the uniform holdings have been that it is not in- 
tended to include them in the statutory protection given. While it may be that 
the decisions have not been of that binding character that would enable the 
appellee to claim the protection of the doctrine of stare decisis to the extent 
of precluding further consideration of the question, it must be admitted that the 
decisions so far as brought to our attention in the full discussion hah at the 
bar and upon the briefs have been uniformly to the effect that these perforated 
rolls operated in connection with mechanical devices for the production of music 
are not within the copyright act. It was so held in Kennedy v, McTammany 
(33 Fed., 584). The decision was written by Judge Colt in the first circuit; 
the case was subsequently brought to this court, where it was dismissed for 
failure to print the record. (145 U. S., 643.) In that case the learned judge 

" I cannot convince myself that these perforated sheets of paper are copies of 
sheet music within the meaning of the copjrrlght law. They are not made to be 
addressed to the eye as sheet music, but they form a part of a machine. They 
are not designed to be used for such purposes as sheet music, nor do they in any 
sense occupy the same field as sheet music. They are a mechanical invention 
made for the sole purpose of performing tunes mechanically upon a musical 

Again the matter was given careful consideration in the court of appeals of 
the District of Columbia in an opinion by Justice Shepard, (Stem v, Rosey, 17 
App. D. Cm 562,) In which that learned justice, speaking for the court, said : 

** We cannot regard the reproduction, through the agency of a phonograph, of 
the sounds of musical instruments playing the music comixised and published 
by the complainants, as the copy or publication of the same within the meaning 
of the act. The ordinary signification of the words ' copying,' * publishing,' etc., 
cannot be stretched to include it. 

** It Is not pretended that the marking upon waxed cylinders can be made 
out by the eye or that they can be utilized in any other way than as parts of 
the mechanism of the phonograph. 

** Conveying no meaning, then, to the eye of even an expert musician and 
wholly incapable of use save In and as a part of a machine specially adapted to 
make them give up the records which they contain, these prepared waxed 
cylinders can neither substitute the copyrighted sheets of music nor serve any 
puri)ose which is within their scope. In these respects there would seem to be 
no substantial difference between them and the metal cylinder of the old and 
familiar music box, and this, though in use at and before the imssage of the 


copyright act, has not been regarded as infringing upon the copyrights of 
authors and publishers." 

The question cauie before the English courts in Boosey r. Whight (180n. 
1 Ch. 836; 80 L. T. R., 561,) and it was there held that these perforated rolls 
did not infringe the English copyright act protecting sheets of mnsic Upon ap- 
peal, Lindley, master of the rolls, used this pertinent language (1900, 1 €^ 122; 
81 L. T. R., 265) : 

** The plalntifTs are entitled to copyright In three sheets of music What does 
this mean? It means that they have the exclusive right of printing or other- 
wise multiplying copies of those sheets of music, i. e., tal the bars, notes, and 
other printed words and signs on these sheets. But the plaintiffs have no ex- 
clusive right to the production of the sounds indicated by or on those sheets of 
music ; nor to the performance in private of the music indicated by such Bheets * 
nor to any mechanism for the production of such sounds of music. 

" The plaintiff's rights are not infringed except by an unauthorized copy of 
their sheets of music. We need not trouble ourselves about authority; no 
question turning on the meaning of that expression has to be considered in this 
case. The only question we have to consider is whether the defendants have 
copied the plaintiff's sheets of music. 

** The defendants have taken those sheets of music and have prepared from 
them sheets of paper with perforations in them, and these perforated sheets, 
when put into and used with proi)erly constructed machines or instruments, 
will produce or enable the machines or instruments to produce the music indi- 
cated on the plaintiff's sheeta In this sense the defendant's perforated roils 
have been copies from the plain titTs sheets. 

" But is this the kind of copying which is prohibited by the copyright act ; or 
rather is the perforated sheet made as alK)ve mentioned a copy oif the sheet 
of music from which it is made? Is it a copy at all? Is it a copy within the 
meaning of the copyright act? A sheet of music is treated in the copyright act 
as if it were a book or sheet of letter press. Any mode of copying such a thing, 
whether by printing, writing, photography, or by some other method not yet 
invented, would no doubt be copying. So, perhaps, might a perforated sheet 
of imper to be sung or played from in the same way as sheets of music are sung 
or played from. But to play an instrument from a sheet of music which ap- 
pears to the eye is one thing; to play an instrument with a perforated sheet 
which itself forms imrt of the mechanism which produces the music is quite 
another thinp." 

SInc-o these cases were decided Congress has rei>eatedly had occasion to 
amend tlie copyright law. The English cases, the decision of the district court 
of apiM^als, and Judge Colt's decision must have been well known to the Mem- 
I)er8 of Conjrrt*ss; and although the manufacture of mechanical niuslcal instru- 
ments had not fjrown to the proportions which they have since attained they 
were well known, and the omission of Congress to specifically legislate concern- 
ing them might well be taken to be an acquiescence in the judicial construction 
given to the copyright laws. 

This country was not a party to the Berne convention of 1886, concerning 
International copyright, in which it was 8i)eclfically provided : 

** It is understood that the manufacture and sale of instruments serving to 
repro<luce mechanically the airs of music borrowed from the private domain 
are not considered as constituting musical Infringement." 

Hut the pHK'eedlngs of this convention were doubtless well known to Congress. 
After the Berne convention the act of March 3, 1891, was i>a8sed. Section 13 
of that act provides (3 U. S. Comp. Stat., 3417) : 

** Sec. 13. That this act sliall only apply to a citizen or subject of a foreign 
state or nation when such foreign state or nation i>ermlt8 to citizens of the 
I'nlted States of America the benefits of copyright on substantially the same 
I)a8l8 as to Its own citizens; and when such foreign state or nation Is a party 
to an international agreement which provides for reciprocity in the granting 
of copyright by the terms of which agreement the United States of America 
may, at Its pleasure, become a party to such agreement. The existence of 
either of the conditions aforesaid shall be determined by the President of the 
T'nIt(Ml States by proclamation made from time to time as the puri^ses of this 
act may require." 

By prcHianiatlon of the President July 1, 181>1, the benefit of the act was given 
to the citizens of Belgium, France, British possessions, and Swe<len {8{r Switzer- 
land!, which countries jjermltted the citizens of the T'nited States to have the 
benefit of copyright on the same basis as the citizens of those countries. On 


April 15, 1892, the German Empire was included. On October 31, 1892, a simi- 
lar proclamation was made to Italy. These countries were all parties to the 
Berne convention. 

It could not have been the intention of Ck>ngress to give to foreign citizens 
and composers advantages in our country which according to that convention 
were to be denied to our citizens abroad. 

In the last analysis this case turns upon the construction of a statute, for 
it is perfectly well settled that tbe protection given to copyrights in this coun- 
try is wholly statutory. (Wheaton v. Peters, 8 Pet, 591; Banks v, Manchester, 
128 U. S., 244, 253; Thompson v. Hubbard, 131 U. S., 123, 151; American To- 
bacco Company v, Werckmeister, 207 U. S., 284.) 

Musical compositions have been the subject of copyright protection since the 
statute of February 3, 1831, (4 Stat., 436,) and laws have been passed including 
them since that time. When we turn to the consideration of the act it seems 
evident that Congress has dealt with the tangible thing, a copy of which is 
reiinired to be filed with the Librarian of Congress, and wherever the words are 
used (copy or copies) they seem to refer to the term in its ordinary sense of 
indicating reproduction or duplication of the original. Section 4956 (3 U. 8. 
Conip. Stat., 3407) provides that two copies of a book, map, chart or musical 
comiKJsition, etc., shall be delivered at the office of the Librarian of Congress. 
Notice of copyright must be Inserted in the sevenil copies of every edition 
published, if a book, or if a musical composition, etc, upon some visible por- 
tion thereof. (Section 4962, Copyright Act, 3 U. S. Comp. Stat, 3411.) Section 
49(;5 (3 U. S. Comp. Stat, 3414) provides in part that the Infringer "shall 
forfeit every sheet thereof, and one dollar for every sheet of the same found 
in his possession,'' etc., evidently referring to musical compositions In sheets. 
Throughout the act it is apparent that Congress has dealt with the concrete 
and not with an abstract right of property In ideas or mental conceptions. 

We cannot perceive that the amendment of section 4966 by the act of Janu- 
ary 6, 1897, (3 U. S. Comp. Stat, 3415,) providing a penalty for any person pub- 
licly performing or representing any dramatic or musical composition for which 
a copyright has been obtained, can have the effect of enlarging the meaning of 
the previous sections of the act which were not changed by the amendment 
The purpose of the amendment evidently was to put musical compositions on the 
footing of dramatic compositions so as to prohibit their public performance. 
There is no complaint In this case of the public performance of copyrighted 
music; nor Is the question Involved whether the manufacturers of such per- 
forated music rolls when sold for use In public performance might be held as 
contributing Infringers. This amendment was evidently passed for the specific 
purpose referred to, and Is entitled to little consideration In construing the 
meaning of the terms of the act theretofore In force. 

What is meant by a copy? We have already referred to the common under- 
standing of it as a reproduction or duplication of a thing. A definition was 
given by Bailey, J., in West v. Francis, 5 B. & A. 743, quoted with approval In 
Boosey i\ Whlght supra. He said : **A copy Is that which comes so near to the 
original as to give to every person seeing It the idea created by the original." 

Various definitions have been given by the experts called In the case. The 
one which most commends itself to our judgment Is perhaps as clear as can be 
made, and defines a copy of a musical composition to be " a written or printed 
record of It in intelligible notation."* It may be true that in a broad sense a 
mechanical instrument which reproduces a tune copies It; but this Is a strained 
and artificial meaning. When the combination of musical sounds is reproduced 
to the ear it is the original tune as conceived by the author which is heard. 
These musical tones are not a copy which appeals to the eye. In no sense can 
musical sounds which reach us through the sense of hearing be said to be copies 
as that term is generally understood, and as we believe it was Intended to be 
understood in the statutes under consideration. A musical composition Is 
an Intellectual creation which first exists in the mind of the composer; he 
may play It for the first time upon an Instrument. It Is not susceptible of 
being copied until it has t)een put in a form which others can see and read. 
The statute has not provided for the protection of the Intellectual conception 
apart from the thing produced, however meritorious such conception may be, 
but has provided for the making and filing of a tangible thing, against the 
publication and duplication of which It Is the purpose of the statute to protect 
the composer. 

Also It may be noted In this coDnectlon that If the broad construction of 
publishhig and copying contended for by the appellants Is to be given to 


this statute it would seem equally applicable to tbe cylinder of a maslc bn, 
with its mechanical arrangement for the reproduction of melodious sounds, 
or the record of the graphophone, or to the pipe organ operated by devices 
similar to those in use in the pianola. All these instruments were well known 
when these various copyright acts were passed. Can it be that it was the 
intention of Congress to permit them to be held as infringements and sup- 
pressed by Injunctions? 

After all, what is the perforated roll? The ftict is clearly established in tbe 
testimony in this case that even those skilled in the making of these rolls are 
unable to read them as musical compositions, as those in staff notation are read 
by the performer. It is true that there is some testimony to the effect that 
great skill and patience might enable the operator to read this record as he could 
a piece of music written in staff notation. But the weight of the testimony is 
emphatically the other way, and they are not intended to be rend as an ordinary 
piece of sheet music, which to those skilled in the art conveys, by reading, in 
playing or singing, definite impressions of the melody. 

These iterforated rolls are parts of a machine which, when duly applied and 
properly operated in connection' with the mechanism to whi(^ tbej are adapted, 
produce musical tones in harmonious combination. But we cannot tliink that 
they are copies within the meaning of the copyright act 

It may be true that the use of these perforated rolls, in the absence of statu- 
tory protection, enables the manufacturers thereof to enjoy the use of musi- 
cal compositions for which they pay no value. But such considerations prop- 
erly address themselves to the legislative and not to the judicial branch of 
the Government. As the act of Congress now stands, we believe it does not in- 
clude these records as copies or publications of the copyrighted music involved 
in these eases. 

The decrees of the circuit court of api>eals are affirmed. 

Mr. Justice Holmes, concurring s[)ecially. 

In view of the facts and opinions in this country and abroad to which my 
brother Day has called attention, I do not feel justified in dissenting from tlie 
judgment of the court, but the result is to give to copyright less scope than its 
rational significance and the ground on which it is granted seem to me to de- 
maud. Therefore I desire to add a few words to what he has said. 

Tbe notion of property starts, I suppose, from confirmed i)ossession of a tangi- 
ble object and consists in the right to exclude others from interference with the 
more or less free doing with it as one wills. Hut in copyright property has 
reached a more abstract expression. The right to exclude is not directed to 
an object in possession or owned, but Is in vacuo, so to si)eak. It restrains tlie 
spontaneity of men where but for it there would be nothing of any kind to 
hinder their doing as they saw fit. it is a prohibition of conduct remote from 
the i>ersons or tangibles of the party having the right. It may be infringed a 
thoiisaud miles from the owner and without his ever becoming aware of the 
wrong. It is a right which could not be recognized or endured for more than a 
limited time, and therefore, I may remark in passing, it is one which liardly 
can be conceived except as a product of statute, as the authorities now agree. 

The ground of this extraordinary right is that the person to whom it is given 
has. In vented some new collocation of visible or audible points — of lines, colors, 
sounds, or words. The restraint is directed against reproducing this collocation, 
although but for the invention and the statute any one would be free to com- 
bine the contents of the dictionary, the elements of the spectrum, or the notes 
of the gamut In any way that he had the wit to devise. The restriction Is con- 
fincKl to the siuviticr form, to the collocation devised, of course, but one would 
expect that, if it was to be prot(»cte<l at all, that collocation would be protected 
according to what was its essence. One would expect the protection to be coex- 
tensive not only with the invention, which, though free to all, only one had the 
ability to acliieve, but with the possibility of reproducing the result which gives 
to the invention its meaning and worth. A musical composition is a rational 
coll(K'ation of sounds apart from conc^epts, reduced to a tangible expression from 
which the CH)llocation can be reprtKluced either with or without continuous 
human Intervention. On i)rlncii>le anything that mechanically reproduces that 
collocation of sounds ought to l)e held a copy, or If the statute Is too narrow 
ought to b(» made so l)y a further act, except so far as some extraneous consider- 
ation of i>olicy may oi)i)ose. What license may be implied from a sale of the 


« copyrighted article is a different and harder question, but I leave It untouched, 
as license is not relied upon^as a ground for the Judgment of the coui^ 

A true copy. 


Clerk Supreme Court- United Statcft, 

Senator Brandegee. Suppose these mechanical devices are not 
themselves subjects of copyright. What is there unconstitutional in 
legidation which should prevent people from transposing onto them 
something that was subject to copyright? 

Mr. Pettit. Your only authority for including these in a copy- 
right bills is Article I, section 8, of the Constitution of the United 
States, and Article I, section 8, of the Constitution* reads : 

To promote the progress of science and useful arts, by securing for limited 
times to authors and inventors the exclusive right to their respective writings 
and discoveries. 

There are two classes, "writings" and "discoveries" or "inven- 
tions." The patent laws provide for protection to discoveries or 
inventions, and the copyright laws are designed to protect authors in 
the ownership of their writings and literary work. 

Senator Brandegee. If, therefore, a piece of music may be con- 
sidered as a useful art and a proper subject of copyright, and if Con- 
gress should prohibit the transposition of the musical idea by any 
mechanical device, why is that unconstitutional as tending to bring a 
mechanical device under the copyright provisions of the Constitution? 

Mr. Pettit. Because the Constitution expresses the idea that au- 
thors shall be protected in their "writings." Now, what is a 

Representative Legare. In other words, these, you contend, are 
not "writings," because they are on a machine? 

Mr. Pettit. "Writings" is the only word that applies to the mu- 
sical composition. 

How much time have I, Mr. Chairman? 

The Chairman. You have ten minutes more. 

Mr. Pettit. Now, turning again to the decision of the Supreme 
Court, I wish to refer to the point which Mr. Currier mentioned to- 
day relative to the Berne convention. You will remember that there 
was a provision in the agreement of that convention which read thus: 

It is understood that the manufacture and sjile of instruments for the me- 
chanical reproduction of musical airs shall not be considercid as constituting an 
infringement of musical copyright. 

Representative Currier. And the United States has now joined 
that convention by proclamation of the President. 

Mr. Pettit. Yes. Now, as stated by the Supreme Court of the 
United States in the Apollo case and as showing the trend of mind 
of the judges of the Supreme Court when they decided that case, I 
would call attention to the fact that immediately following that con- 
vention the act of March 3, 1891, was passed, which act provided that 
this act shall apply only to a citizen or subject of a foreign state or 
nation when sucli foreign state or nation permits to citizens of the 
United States of America the benefits of copyright on substantially 
the same basis as to its own citizens, and when such foreign state or 
nation is a party to an international agreement which provides for 
reciprocity in the granting of copyright, by the terms of which 

39207—08 18 


agreement the United States of America may at its pleasure become 
a party to such agreement. The existence of either of the conditions 
aforesaid shall be determined by the President of the United States 
by proclamation made from time to time as the purposes of this act 
may require. 
The Supreme Court in this connection says : 

By proclamation of the President July 1, 1891, tlie benefit of the act wa« given 
to the citizens of Belgium, France, British possessions and Sweden [siir Switz- 
erland], which cpuntries permitted the citizens of the United States to have the 
benefit of copyright on the same basis as the ciizens of those countries. 

On April 15, 1892, the German Empire was Included. 

On October 31, 1892, a similar proclamation wac made as to Italy. These 
countries were all parties to the Berne convention. 

The opinion of the Supreme Court, written by Mr. Justice Day, 
continued : 

It could not have been the intention of Congress to give to foreign citizens 
and composers advantages in our country which according to that convention 
were to be denied to our citizens abroad. 

Representative Leake. Are you arguing that Congress has no 
right to extend this copyright act to these rolls? Are you not mis- 
taken? What does this clause in the last paragraph mean? 

It may be true that the use of these perforated rolls, in the absence of statu- 
tory protection, enables the manufacturer thereof to enjoy the use of musical 
comi)ositions for which they pay no value. But such considerations properly 
address themselves to the legislative and not to the judicial branch of the 

Mr. Pettft. Exactly. 

Representative Leake. Now, is not that an invitation by the court 
to Congress to legislate on that subject? 

Mr. Fettit. No; it is not an invitation by the Supreme Court to 
pass unconstitutional legislation. We all know that the Supreme 
Court never passes (or as a rule, never passes) on the constitution- 
ality of an jsict or decides any question which it does not necessarily 
have to decide in order to settle the case which it has before it. 
Therefore, while the question of the constitutionality of that act 
was most thoroughly before the Supreme Court in a most elaborate 
brief by our friend Mr. Albert H. Walker (and a masterpiece, too), 
they did not decide that question, because it w^as not necessary to do 
so; l)ut the fact that they had all those points before them is my war- 
rant here for saying to you that the trend of thoucrht was that any 
such le<rislation was without the purview of the copyright problems 
under Article I, section 8. 

I wanted to go a little further and to refer to one other point of 
w^hich the Supreme Court s])eaks, and that is as to the question of 
what is meant by a *' copy." It decided heie wdiat a " copy " is under 
the copyright act. The court defines a copy of a musical composi- 
tion to DC a " written or printed record of it in intelligible notation." 
That, of course, applied to the act of Congress which the Supreme 
Court was considering; but when you consider that the act w^as also 
based upon the Constitution of the United States, Article I, section 
8, this decision of what is meant by a copy of a writing becomes im- 
portant here. The court places itself on record as to the thing w^hich 
an author is entitled to when it defines the copy as it did as " a 


written or j)rinted record of it in intelligible notation." The Supreme 
Court in this connection says : 

It may be true that in a broad sense a mechanical instrument which repro- 
duces a tune copies it ; but this is a strained and artificial meaning. When the 
combination of musical sounds is reproduced to the ear it is the original tune as 
conceived by the author which is heard. These musical tones are not a copy 
which appeals to the eye. * * * A musical composition is an Intellectual 
creation which first exists in the mind at the composer : he may play it for the 
first time upon an instrument. It is not susceptible of being copied until It has 
been put in a form which others can see and read. 

Therefore it would appear that the copyrighting of musical instru- 
ments would be altogether out of the purview of copyright acts. 

Representative Washburn. I should like, to ask you a question. 

Tlie Chairman. The gentleman's time will be up m just one minute. 

Representative Washburn. Assuming for a moment that you had 
no doubt as to the constitutionality of this legislation, what then 
would be your opinion in regard to it ? 

Mr. Pettit. Assuming what? 

Representative Washburn. Assuming that it would be constitu- 
tional to include in the copyright law these disks and so on, what 
would be your opinion as to the wisdom of doing it? 

Mr. Pettit. That would bring us, perhaps, to the compulsory- 
license consideration. 

Representative Washburn. Would you or would you not oppose 
the putting of this clause into the copyright act, assuming that it 
would be constitutional to do so? 

Mr. Pettit. I want to say this, that if there should be any such 
legislation, all the present manufacturers of mechanical instruments 
should be specially protected by the bill so that their present property 
rights would not be destroyed. For instance, we have hundreds of 
thousands of dollars' worth of matrices made containing copyrighted 

Representative Washburn. Very good. Assuming that they were 

f)rotected, what would be your view as to the propriety of such 
egislation ? 

Mr. Pettit. I think that with proper safeguards to the talking- 
machine manufacturers the committee might perhaps we warranted 
in passing such legislation containing a compulsory-license clause and 
a clause protecting established property rights. 

Representative Washburn. Are you going to consider the matter of 
compulsory license? 

Mr. Pettit. I have not the time. 

Representative Washburn. Is anyone going to do so? 

Mr. Pettit. I think, perhaps, Mr Walker will do that. As I have 
consumed the time allotted to me, I will close, thanking the committee 
for its consideration and attention. 

The Chairman. I should like to give notice now that any speaker 
who dcvsires a typewritten copy of his remarks for correction may 
make arrangements with the stenographer, with the understanding, 
of course, that he pays for such copy, and I want also to say that m 
the correction of his remarks he is not supposed to change in any way 
the meaning of an answer or of a question. As to the construction, 
we have no special objection to corrections, but we do not want the 
substance or meaning changed in any way. 

We will now hear from Mr. Walker. 



Mr. Walker. Mr. Chairman and gentlemen of the committee, I 
may not be a venerable man, but I have come down to you from a 
former generation. The occasion of that remark is this, I hold in 
my hand a printed book entitled "Arguments before the Committee 
on Patents of the Senate and House oi Representatives of the Forty- 
jBfth Congress." Thirty years ago last November I appeared before 
the Senate Committee on Patents, which then consisted of Senator 
Booth, of California; Senator Wadleigh, of New Hampshire; Sen- 
ator Hoar, of Massachusetts; Senator Morgan, of Alabama, and 
Senator Kernan, of New York, in opposition to a bill to amend the 
patent laws, known as bill No. 300. In the following February I 
appeared before the House Committee on Patents in opposition to 
the same bill. This book was printed by the authority of Congress 
at that time in order to present all the arguments then made. 

That bill to amend tne patent laws of the United States was 
backed by a combination of corporations and selfish men which was 
stronger than has backed up this present iEolian scheme. At one 
time during that contest a number of influential gentlemen agreed 
with me in opposing section 2 of that bill on constitutional grounds. 
Subsequently those gentlemen were the recipients of concessiotis made 
by other selfish interests, so that at last I stood alone in opposition 
to that section. I fought it through both Houses in the Fortv-fifth 
Congress. The committee put the question to the test ana were 
beaten in the House of Representatives. 

The speeches I made on that occasion were taken down verbatim, 
and two paragraphs of those speeches are particularly pertinent 
here, and I will read those paragraphs to you. 

In the speech made in November I said : 

I take it the gentlemen of the committee were not sent by their constituents 
to Washington for the purpose of passing laws which will be held unconstitu- 
tional by the Supreme Court. It is the duty of Congress to pass wise laws, 
but those laws should be always constitutional. No object would be gained by 
passing the bill as it now is except to promote litigation, raise a large crop of 
questions that would be finally settled only by the Supreme Court, and on the 
principles I have enunciated they would confirm our rights. If the bill pre- 
eente<l to this committee is clearly unconstitutional, the c<mnuittee wiH set* 
such unconstitutional features, and they will sift them out, and adopt those that 
are constitutional. Members of the conunittee may think that if they were 
making a constitution they would make it differently, but still I fancy they will 
conform to the Constitution as it is and pass no laws not In conformity with it 

All the Senators who were members of the committee thirty years 
ago are long since in their gi-aves, and all the nicnibers of the House 
committee are dead except three, and at the time I was in that con- 
trovei\sy befoi'e the committees of the Forty-fifth Congress there were 
only six men in either House who are in either House now. 

On that occasion I called the attention of the committee, presided 
over by Mr. Vance, of North Carolina, to this extract from the laws 
of Justinian: 

It Is a principle of civil law that a lawgiver can not alter his mind to the 
prejudice of a vested right. 

In pursuance of the laws of the United State.s my client, the Victor 
Company, has poured out money like water to build up a great me- 


chanical business and the Supreme Court of the United States has 
lately told us that in doing so we were entirely within our rights. 
Congress had told us that we were entirely within our rights, and 
the Supreme Court told us what Congress told us. * And now I say 
that if Congress changes its mind and subjects these musical composi- 
tions to copyright, it will be interfering with rights that belong to us. 
In the course of that speech that I made before Senator Vance's 
committee years ago Mr. Vance put this question to me : 

The Chairman. If Congress, tberefore, passes an act that is uncoDstitutioDal, 
the Supreme Court would set It aside? 

And I replied: 

Mr. Walker. Tiioy are bound to; and they will set this aside; but the point 
I make Is this, that the Members of Congress equaUy with the Judges of thfe 
Sui)reme Court talce an oath to support the Constitution to the best of their 

The Chairman. Of course, that is true. 

And then I continue: 

Mr. Walker. I say, therefore, that when a bill is shown to be clearly uncon- 
8titutl(5nal — as members of the committee will certainly conclude this second 
section is when they review the authorities to which 1 have called attention — 
Congress has no right to pass such a bill the only effect of which will be to put 
lltiji:ants to the expense of going to the Supreme Court to get it abrogated. 

Tlie Chairman. No; they have no right, if they know it. 

Mr. Walker. They are bound to use due diligence in finding it out. 

I have here also the official published report of all the arguments 
in June, 190G. My speech is on pages 160 to 181, inclusive, of that 
book; and if gentlemen desire an elaborate exposition of the situa- 
tion as it existed at that time, I must ask them to read that speech 
without taking any of my time on this occasion in repeating any por- 
tion of it. 

In December, 1906, 1 made another elaborate speech on the subject, 
and this [indicating a thick pamphlet] is a book that contains the 
entire report, and m which book my speech is on pages 270 to 285 

In those speeches I took a threefold ground. I said that the propo- 
sition which was before the committee at that time was plainly and 
flagi-antly unconstitutional — as now, in the Barchfeld bill and the 
Kittredge bill. 

The second ground I took was that whether it was unconstitutional 
or not it was unjust; and the third ground, that whether unconstitu- 
tional or unjust or not, it was plainly opposed to public policy. I 
insist upon the correctness of those propositions and insist with all 
the strength that God has given me. 

In the Apollo case, decided by the Supreme Court in February, I 
prepared a brief entitled "Brief and Argiunent for Connorized Music 
Company." I was not counsel in the case, but the Supreme Court 
permitted me to intervene to the extent of preparing a brief, copy 
of which has been sent to every Senator and Member of Congi-ess. 
That brief contains the most condensed account ever printed of the 
origin and progress of the copyright laws. And if I am any judge of 
the establi^mient of propositions, I hold that that brief proves be- 
yond the slightest question that Congress has no power to pass any 
law subjecting to any tribute to any musical composer the making of 
mechanical music rolls. It has drawn on the laws of England and 


the laws of Scotland, and no human being^has ever attempted to reply 
to one single paragraph of that brief. The counsel for the J&ohaji 
Company were silent as mice are in churches on that question of con- 

Representative Leake. May I see that book, please? 

Mr. Walker. Certainly ; I will give you a copy of it. 

It is a universal rule of the Supreme Court, announced over and 
over again, that they never will decide that a statute is unconstitu- 
tional or constitutional in any case where the statute itself has not 
been violated. In this case the first line of defense was that the 
parties had not Wolated the copyright statute, and the second was that 
if they had, they had not violated the Constitution. The court de- 
cided that first question in favor of the defendant and remained 
entirely silent on the other question. And that was the duty of the 
Supreme Court, becaust^ when the Supreme Court undertakes to de- 
cide whether a statute is constitutional or otherwise it undertakes a 
mighty jurisdiction, and it will not do so in any case except where 
absohitely necessary. 

Justice Day, who was perfectly familiar with the case, carefully 
omitted to say anything about it. But there are two passages in the 
opinion in addition to those mentioned, in which you can read between 
the lines. In one of those* plat*es — the place mentioned by the gentle- 
man from New Jersey — it is natural enough to draw the inference 
that Judge Day thought of subjei'ting mechanical devices to the 
copyright clause of the Constitution. But that is not so. Tliis 
is the language : 

/ These i^erforated rolls are i>arts of a mai-liine which, when duly appUed and 
properly u|»erated in c<»niieition with tlie nuvlianism to which they are adapted, 
produce musical tones in harmonious i'<.>uibination. 

The --igniticant sentence is this: 

Rut we rail not thiniv that they are copies within the nieaninp of the copy- 
right art. 

Now. if they arc nut copies within the meaning of the copyright 
act, they arc not wi it lugs. The Mat!' notation that was involved in 
the ca-e was nndeniahly a writing, and the Supreme Court says these 
perforated rolls are not copies. If not, they are not writings." 

In another pla<c the Supreme Court say>: 

The fact is cUmfIv fstablislatl in the testimony in tills case that even those 
skilleil in xlw ni.ikiiiL' <-f tli»'s«- mils are uiialile ti» re:ni tl.t'in as uiusiejil c*oiiiiK>si- 
tious, as those in staff notati«»n are n'ad by tlie perfoniuT. 

Will any geiitleinan tell nie that anything that can not be read is a 
writing f The Supreme C«»urt has no juri>diction to give prutei'tion 
to anything exrept a writinir. So that when the Supremt Court 
dei'itied a'- matter of fact that these perforatCil rolN can not be read, 
it deciilcd that they were not writings. 

Tlie Chairman. Would you claim, then, that a photogra[)li is a 

Mr. Walkki:. A pirtiire writing. 1 think the Supreme Court in 
the Sarony caM- w*nt fm-ther than it might go now. Hut the correct- 
ness of the Sarony ca-e can j)erfccily well Ik^ vinilicatcil without anv 
inconsistenty «»f my argument. r»ecau.>e leading from thi< rtn^ni to 
the Library pmper there is a beautiful picture of which the name is 
Picture Writing; that is t»» ^ay, our amvstoi^ are cngagi^d in making 


pictures on rocks. It is called " Picture Writing." The validity of 
a writing of a photograph can be vindicated on that ground and on 
no other. 

Now, Mr. Chairman and gentlemen, I wish to submit to the com- 
mittee a new argument — that the committee has never yet heard, and 
the courts have never yet heard — an argument upon the question of 
the constitutionality of subjecting any mechanical instrumentalities 
to any copyright law on any terms, 

That new argument is based upon the imanimous decision of the 
Supreme Court of the United States delivered by Judge Bradley m 
1880 (recorded in 101 U. S., p. 100), the case of Baker against Selden. 

Decisions of the Supreme Court do not often escape my attention. 
But when arguing this Doint in the Apollo case, and before the com- 
mittees of Congress, I aid not know of that decision. It was men- 
tioned by one of the gentlemen in the Apollo case, but he did not 
mention it in a way to attract my attention. I think he missed the 
point. But whether he did or not, I wish to read to ijhis committee 
now the significant sentences which I have underscored in the lan- 
guage of Judge Bradley, which throw a flood of light upon this ques- 
tion and prove to my mind that the Supreme Court at that time 
unanimously held that copyright must be confined to sources of in- 

The Chairman. Is that the case you mention in your brief? 

Mr. Walker. No, it is not mentioned there. It is brought to your 
attention now for the first time. 

Representative Leake. Are you an attorney? 

Mr. Walker. I have practiced law in 36 States of the Union. 

Justice Bradley says: 

The bill of complaint was filed against the defendant. Baker, for an alleged 
infringement of these copyrights. The latter, In his answer, denied that Selden 
was the author or designer of the books, and denied the infringements charged, 
and contends on the argument that the matter alleged to be infringed is not a 
lawful subject of copyright. 

Selden published a book, the first part of which explained a 
system of bookkeeping invented by him, and the last part was made 
up of blank sheets of paper suitable to be used by those who should 
use the system. Baker reprinted the book, in which, however, he 
did not incllide the explanation in words. The Supreme Court said 
that he did not infringe, because all he did was to utilize utilitarian 
instrumentalities invented by Selden for the purpose of carrying out 
the art which he invented and which is described in the letter press, 
which Baker did not use. To read all the rest of Judge Bradley's 
opinion would take up all of my time. 

The Chairman. Can you not refer to it now and let the committee 
read it, as you have only ten minutes, and you can go on to some 
other point; but I do not care to interfere. 

Mr. Walker. I would prefer to read the portions I have marked. 
Justice Bradley says: 

The book, or series of bool<s, of wliich the complainjint claims the copyright 
consists of an introductory essay explaining the system of l)ookl{eeping referred 
to, to which are annexed certain forms of blanks, consisting of ruled lines and 
headings, illustrating the system and showing how it is to be used and carried 
out in practice. This system effects the same results as bookkeeping by double 
entry; but, by a peculiar arrangement of columns and headings, presents the 


entire operation of a day, a week, or a month, on a single page» or on two pagei 
facing each other, in an account book. The defendtint uses a similar plan so 
far as results are concerned, but makes a different arrangement of the columns 
and uses different headings. If the complainant's testator had the exclusiye 
right to the use of the system explained in his book, it would be difficult to 
contend that the defendant does not infringe it, notwithstanding the difference 
in his form of arrangement; but if it be assumed that the system is open to 
public use, it seems to be equally difUcnlt to contend that the books made and 
sold by the defendant are a violation of the copyright of the complainant's book 
considered merely as a book explanatory of the system. Where the truths of a 
science or the methods of an art are the common property of the whole world, 
any author has the right to express the one, or explain and use the other, in 
his own way. As an author, Selden explained the system in a particular way. 
It may be conceded that Baker makes and uses account books arranged on sub- 
stantially the same system, but the proof fails to show that he has violated the 
copyright of Selden's book, regarding the latter merely as an explanatory woric, 
or that he has infringed Selden's right in any way, unless the latter became 
entitled to an exclusive right in the system. 

The evidence of the complainant is principally directed to the object of show- 
ing that Baker uses the same system as that which is explained and illustrated 
in Selden*s books. It becomes important, therefore, to determine whether, in 
obtaining the copyright of his books, he secured the exclusive right to the use 
of the system or method of bookkeeping which the said books are intended to 
illustrate and explain. It is contended that he has secured such exclusive right, 
because no one can use the system without using substantially the same ruled 
lines and headings which he has appended to his books In Illustration of it. In 
other words. It is cont(»nded that the ruled lines and headings given to illustrate 
the system are a part of the book, and, as such, are secured by the copyright; 
and that no one can make or use similar ruled lines and headings, or ruled lines 
and headings made and arrange<i on substantially the same system, without 
violating the copyright. And this is really the question to be decided in this 
case. Stated In another form, the question is whether the exclusive property In 
a system of bookkeeping can be claimed, under the law of copyright, by means 
of a book In which that system is explained. The complainant's bill, and the 
case made under It, are baseil on the hypothesis that It can be. 

It can not be pretended, and indeed it is not seriously urged, that the ruled 
lines of the conii)lalnant's account b(K)k can be claimed under any special class 
of objects, other than books, named In the law of copyright existing In 1859. 
The law then in force was that of 1831, and spe<'ified only hooks, maps, charts, 
musical compositions, prints, and engravings. An account book, consisting of 
rukMl lines and blank coMnnns, can not he called by any of these names unless 
by that of a hook. 

There is no dcuibt that a work on the subject of hookkeiM)lng, though only 
explanatory of well-known systems, may he the suhjt^'t of a copyright; but 
then, it Is clMinKHl only as a hook. Sn<*h a ho(>k may he explanat<»ry either of 
old systems, or of an entirely new system; and, considere<l as a book, as the 
work of an author, conveying infonnatlon on the snhjtK-l of hfM>kkeei)ing and 
containing detailed explanations of the art, it may he a very valuable acquisition 
to the practical knowledge of the connnunity. But there Is a clear distinction 
between the hook, as such, and the art which it is intended to illustrate. The 
mere statement of the i)roposition is so evident that it retpiires hardly any 
argument to snpi»ort it. The si»me distinction may he pre<licjited of every other 
art as well as that of bookkeeping. A treatise on the composition and use of 
medicines, he they old or new; on the construction and use of |)lows, or watches, 
or churns: or on the mixture and ai>i>Iication of colors for painting or dyeing; 
<»r on the mcxle of ilrawing lines to pnxluce the efftH't of perspective, would be 
the snl)j<M^t of <-oiiyright; hut no one would conteml that the copyright of the 
treatise would give the exclusive right to the art or manufacture descrilxMl 
therein. Tlu' copyright of the hook, if not pirated from other works, would be 
\alid without regard to the novelty, or want of novelty, of its suhjix't-matter. 
The novelty of the art or thing <iescrihed or explalnnl has nothing to do with 
the validity of the copyright. To irive to the author of the h(K>k ail exclusive 
property in the art des<Tibed therein, when no examination of its novelty has 
ever bwn ofHcially made, would be a surprise and a fraud uiM)n the public. 

Now, to my mind the argument is perfectly conclusive that Con- 
gress has no constitutional power to subject to tribute of any kind 


the performance of a composer's tune in order to subject to tribute 
of any kind any instrument that is useful in the performance of that 

In pursuance of that view, I and my client are entirely satisfied 
with the musical provision of the Smoot and Currier bills. And my 
clients are profoundly dissatisfied with the provisions of the Kitt- 
redge and Barchfeld bills in that behalf. 

Inow, the only alternative proposition is the one that has not been 
embodied in anything that has •been mentioned here, namely, the 
proposition to permit the public to make and sell musical instruments 
with copyrighted tunes, upon the payment of royalty. If C!ongress 
has no power to suppress the manuiacture and sale of such perfo- 
rated sheets altogether, it has no power to attach conditions to the ex- 
ercise of the right of making and selling such perforated sheets. So 
that no argument of a constitutional character, which would justify 
the compulsory royalty scheme, can be thought of which would not 
also justify the Barchield scheme of absolute suppression. 

Mr. Burkan challenged the compulsory-license idea on another 
constitutional ground to which I do not agree. He challenged that 
on the ground that the right of Congress to legislate on the subject is 
confined to an exclusive right. I must disagree with him and hold 
that the greater includes tlie less, and that if Congress decides to 
exercise its power under the Constitution, it has the power which can 
make the law either exclusive or subject it to such limitations as it 
may prescribe. 

But I take the ground now, and shall always while I live, that the 
Congress of the United States has no power whatever to pass any law 
that shall impede or burden the business of making and selling per- 
forated sheets, phonograph disks, or cylinders under the copyright 
clause of the Constitution. I maj^ be overruled. But if this com- 
mittee attempts to subject mechanical musical instruments to copy- 
right law, either by virtue of a compulsory-license plan, or any other 
plan, you will be opening Pandora's box and stirring up litigation 
from one ocean to the other and from the Lakes to the Gulf. 

Representative Leake. Have you anything to say on the merits of 
the question as to whether the manufacturers of these mechanical 
devices should, without compensation, use the results of other peo- 
ple's efforts in a creative direction ? 

Mr. Walker. Certainly. If you will read my speech of a year ago 
in the book [indicating the pamphlet before referred to] you wUl see 
it set forth. When you take into account the bottom facts of the case, 
you will conclude that it is contrary to justice to make or enforce any 
such law. If I had another half hour I would ar^ie that point, but 
not having it, I mtist merely invite your attention to my former 
speech on the subject. 


Mr. Dyer. Mr. Chairman and gentlemen, I had hoped when I came 
to Washington on this occasion that I would be called upon to rep- 
resent only the phonograph interests, but the matter of moving pic- 
tures was taken up yesterday and I wish to say a preliminary word 
or two on that subject. 


I represent the Edison Manufacturing Company, which is one of 
the eight concerns engaged in this country in the manufacture of 
moving pictures and is the owner of the foundation patent granted to 
Mr. Kdison and covering that art. All the other manufacturers of 
moving pictures in this country are, with one exception, licensed 
innler that patent. AUhou^h tliey all operate as licensees, they are 
independent companies, having absohitely no corporate relations one 
with the otlier. Therefore, I can only speak for my own client. 

I agree fully with what Mr. Frohman and his associates have said 
as to tlie injustice of obtaining copyrighted but unpublished plays and 
exhibiting them through the medium of moving pictures. I did not 
know that this had ever been done, but I would certainly condemn 
the practice. I do know, however, that one of the licensees to which 
I have referred has made a specialty of representing historical plays, 
one of which I think was " Othello," by means of moving pictures, 
but of course these* were not copyrighted and no rights wei-e in- 
fi'inged, either in a legal or ethical sense. I had no idea that anyone 
in the moving-picture business made use of copyrighted plays, 
whether published or not, and so far as my client is concerned they 
WH)uld not think for a moment of <loing so. 

This question of legislation regarding moving pictures comes to me 
as a complete surprise, and 1 submit that in view of the great public 
interest which is taken in these exhibitions the nnitter should be held 
in abeyance until all interests can be consulted. There should certainly 
l)e no hasty and ill-advised legislation in coiuiection with a matter of 
such large size. All the companies interested in the manufacture of 
moving pictures are substantial (concerns, they have much money 
invested m the busines-^, they can be reached at any time by legal proc- 
ess, they have no intention of abandoning the business, so that when 
everything is considered, this (juestion might well rest until it can 
b(» discussed by all the interests involved. 

Now, as to the charge, which has been frecjuently made at these 
hearings, that there is a ])h()n()graph trust. If thei-e were such a 
trust. 1 ap|)relieii(l that it has the right to ol)j(»ct to legislaticm affect- 
ing it^ inleresi, al least so long as its legality is not (juestioned. But 
there is iiu such thing. The three talking-machine companies in 
thiscountrv have no connection with each other, but. on the contrarv, 
are engaged in the keen(\st sort of competition. Their legal quarrels 
take up a good part of my time. It is ti'ue they all o])erate under 
the plan of maintaining prices for their goods, but this is a modern 
development which has been extended to many arts. All of these 
business schemes are perfectly legal and in fact have been com- 
mended and sustaine<l by the Supreme Court. (Hement & Sons c. 
National Harrow (\)ni|)any, 1S(> W S., TO.) In that case the court 
decidtMJ that the owner of a patent or hi.^ licensee has a legal right, in 
disposing of a ])ateiited article, to itnpose the condition that it should 
not be sold to tiie puhlic below a <lelinite price. 

Reference has been made to the Kaufman ca>e in Pittsburg (Edison 
Phonograph Company /'. Kaufman. 10r> Fed., *.)iW)) and to the Pike 
case in Boston (Kdison Plionograi)h (^)mpany r. Pike, IU> Fed., 808) 
apparently for the purpose <rf showingthat the phonograph company 
has been engaged in oppressing its smaller competitors, but, if true, 
this has absolutely no bearing on the questions we are now discussing. 


As a matter of fact, however, both of those suits were actions against 
phonograph dealers who deliberately conspired with licensees of the 
Edison Company to violate the conditions of those licenses, and in 
each case the practice was peremptorily enjoined by the court Cer- 
tainly nothing helpful to the supporters or the Kittridge bill can be 
obtained from these decisions. 

Referring now to the pix)position of extending copyright protection 
to mechanical rejM'oduction by talking-macliiiie records, 1 had in- 
tended in considering the constitutional question to direct the atten- 
tion of the committee to the case of Baker v. Selden (101 U. S., 99), 
in which the Supreme Court distinguished between the right to print 
copies of a book describing a new art and the right to enjoin others 
from practicing that art; and they point out that the scope of copv- 
right protection ought not to be extended beyond the right of puD- 
lication and must exist independently of the substance thereof; but 
Judge Walker has so fully covered this point and in so lucid a way 
that I need not refer to it in detail. The decision should, however, 
be read by every member of the committee as defining the legitimate 
extent to which copyright protection should go. 

To my mind the only important question involved in the considera- 
tion of this matter is purely one of ethics. The so-called manufac- 
turei's have certainly been justified, at least legally, in their previous 
use of copyrighted music. The only question now is. Have the com- 
posers a right to a part of the profits which are derived by the manu- 
facturei-s from the sale of phonograph records utilizing their com- 
positions? But in the case of Baker v. Selden the same ethical ques- 
tion was involved. Selden had invented a new system of bookkeep- 
ing, and had described it in a book. Why had not he an ethical right 
to prevent others from describing that system at a profit to them- 
selves, or of practicing it for profit? Yet the Supreme Court held 
that such rights were entirely outside of the scope of copyright, and 
if to be protected at all, such protection must be by patents. 

Congress does not deal with ethical questions, but its powers are 
strictly limited by the Constitution, and this is true of copyright laws. 
Congress has no power whatever to grant bounties to composers, how- 
ever meritorious and deserving they may be. Its sole power is to 
pass laws which shall promote the progress of science and useful arts, 
and it certainly has no constitutional authority to enact copyright 
legislation that on its face will retard the progress of science and the 
useful arts. I think it can be demonstrated to a mathematical cer- 
tainty that such would be the case in any bill providing for mechan- 
ical copyright, as I will now explain. 

We all agree that in any bill which will deal fairly w ith all inter- 
ests there should be a provision providing for reciprocity and grant- 
ing to the citizens or subjects of foreign states the benefits of the law 
only when American citizens are given similar privileges in those 
states. To my mind it is intolerable that rights should be granted 
to foreigners in this country that American citizens do not have in 
foreign lands. Now, we know that Italy is the only country granting 
protection of this sort, although in France the protection extends to 
the words of copjrrighted music. Admitting that there should be a 
reciprocity provision, then the fact is that substantially all foreign 
music would be excluded from the act while American music woiud 


be included . therein. The figures that have been submitted to the 
chairmen of the two committees show that notwithstanding^ the fact 
that there has been no attempt on the part of the manufacturers to 
advance one interest as against another, the amount of foreign music 
used by them is about 70 per cent, and American music but 30 per 

Eepresentative BARcuFEiiO. Wliere did you get your figures ? 

Mr. Dyer. Some of the other gentlemen have quoted them. The 
average proportion is what I have stated. 

The Chairman. I have some figures on that point 

Mr. Dyer. This shows the normal demand ot the American people. 
Under existing conditions, with no legislation on this point, they 
demand more than twice as much foreign music as domestic music 
The manufacturers have made no eflfort to force upon the public 
foreiffn music to the exclusion of domestic music, because one is as 
free tor use as the other, but the people themselves, having the op- 
portunity of taking either, demand 70 per cent of the foreign music 
and only 30 per cent of the American music. Now, if this legislation 
is paased, American music will be taxed and foreign music untaxed, 
providing, of course, we have a reciprocity provision which must 
certainly, in all fairness, be included. This being so, the manu- 
facturer will have to pay a tax for using Ameri9an music, while he 
can use foreign music without taxation. Is there any doubt in the 
minds of any of you gentlemen what will be the inevitable result of 
this situation? Will not any manufacturer naturally use the untaxeil 
music whenever possible? And instead of the public normally de- 
manding 70 per cent of foreign music without having it forced upon 
them, will not the manufacturer bv using foreign music whenever 

Eossil)le make this percentage still higher? This would be inevitable, 
ecause it is not in human nature to go to an expensive market when 
the same goods can be obtained in a cheaper market. It seems to me, 
therefore, that the proposition would not promote the progress of 
science, or, in other words, advance the development oi American 
music, but, on the contrary, would stimulate the j)ublic appreciation 
for foreign music to an enormous extent, and correspondingly retard 
the progress of the American art. 

Notwithstanding all of these things — tha^ the proposition is uncon- 
stitutional, that it is inexpedient, and that it would not stimulate the 
development of American music — if I were convinced that the rights 
and privileges of composers and authors were in any way lessened 
by the wond(M-ful development of mechanical rej)ro(lucing devices 
l' would be the first man to advocate assisting them, although I do 
not see how it could be done by changing the copyright law. But 
I have seen no evidence presented to either connnittee, except the 
stiitements of counsel, representing their clients, that the composers 
have, in fact, lost anything by reason of that development. On the 
contrary, I understand that the demand for slieet music was never so 
gi'eat as at the present time; and it is to sheet niusic! alone, in mv 
opinion, that the rights of composers can constitutionally extend, i 
have with me a number of letters showing the feelings of publishers 
and composers regarding this matter. They ask that their music be 
placed on phonogi-aph records, and they recognize the great adver- 
tising advantage that will be derived fi*om such use. Some of them 


complain that we discriminate against them and use the music 
of their competitors. These letters run from 1904 — long before 
any proposition of this kind was agitated — up to January, 1908, and 
are all to the effect that the greatest advertising they have is from the 
use of their compositions on phonograph records. 
The letters are as follows : 

[Joseph Lacallc & Son, music publishers, 466 Sixth avenue, cor. W. 28th street, New 


Dear Sir: By request of our friend, Mr. Werner, from Carl Fischer, I take 
the liberty of writing to you. I have sent you a separate copy of a new march 
of mine, which has become as famous as my " Peace Forever " march. Any- 
thing that you can do for it will be greatly appreciated by 

Yours, respectfully, Jos. Lagalle. 

The Denver Dry Goods Company, 

Denver, Colo., March S, 1904. 
Mr. C. n. Wilson, 

(Care National Phonograph Company) 

Ncic York City, 
Dear Mr. Wilson: We have this day written M. Witmark & Sons to forward 
your orchestrations of two pieces, viz, '* Windmill ** and *' Thoughts of Love," 
which are in great demand throughout the West. If possible, we wish you 
would make records of these pieces and we will take 100 of each as soon as com- 
pleted. We think you will have a big sale on them. 

I have taken the liberty of addressing this letter to you direct, as I wanted it 
to reach the proper hands. Would ask you to advise us as soon as possible If 
you will be able to make records of the above-mentioned pieces. 
With best regards, I am, yours, very truly. 

H. Shields. 

M. WiTMABK & Sons, Publishers, 

New York, March 7, 1904. 
Mr. C. H. Wilson, 

(Care National Phonograph Company) 

New York City. 
Dear Sir : At the request of Mr. H. Shields, of the Denver Dry Goods Com- 
pany, we arc sending you, under separate cover, full orchestrations of '*The 
Windmill " and ** Thoughts of I^ove." • 
Hoping they arrive safely, beg to remain, 
Very truly, yours, 

M. Witmark & Sons, 
Jay WiTifABB:, Treasurer, 

Windsor Music Company, Chicago, April 7/ 1904. 
National Phonograph Company, Orange, N. J. 

Gentlemen: Beg to say that we send you this day by mail a bunch of our 
music and would be pleased if you will put some of them in your records for 
your phonograph, and we think you will find some of them very suitable and 
very good for that purpose. We would be pleased If you will let us know 
which ones you will use. 

If you will use them we will be pleased to send you our new music every 

Thanking you for same, we are 

Yours truly, Windsob Music Co. 


Jos: W. Stebn & Oo., Mufiio PuBi;iBHn8, 

New York, Sept. 6, I90i. 
Mr. Kbankheit, 

(Care National Phonograph CJo.), 

Orange, N, J. 
Dear Sir: Mr. N. Goldflnger, manager of the music department of Slegel 
& Cooi>cr. called t)ur attention to the fact that he has no records of our publi- 
cations from your concern. 

As we have a number of big hits, of which Mr. Goldtinger fells thousands 
and thousands every month, we thought we would call your attention to the 
fact, and ask you to Icindly ma lie records of some of them. 

We therefore mail you, under separate cover, about 20 numbers (10 vocal and 
10 instrumental), and would kindly ask you to look them over and use as 
many as you possibly can. 

Among the big hits in the lot we might mention, " Polly Prim," " Big Indian 
Chief," " You're as Welcome as the Flowers In May," " Where the Sunset 
Turns the Ocoans Blue to Gold." " Egypt," *' The Little Rustic C/>ttage By the 
Stream," *' Upon a Sunday Morning When the Churchbells Chime," " On the 
Pillows of Despair," " Save It For Me," " Peggy Brady," " Goo-Goo Man." 

If you wish to have our statement regarding the popularity of these num- 
bers verified, wo only neeil to refer you to Mr. Goldfinger. We shall put your 
name on our regular list of subscribers and you will receive our monthly 
publications regularly from now on. 

Very truly, yours, Jos. W. Stebn & Co. 

Boston, Mass., Octoher 20, 1904, 
Mr. W. 11. A. Cronkiiite, yew York, 

Dear Sir: I have just had a talk with Mr. Scott. He says that you are 
thinking of making up some quadrilles, landers, and other dances for the 
phonograph and suggested my sending you something. I am sending you under 
separate jcover as complete a catalogue as I have at present. If you find any 
numbers in this catalogue that will be of any service to you for phonograph 
use let me know and 1 will take pleasure In sending you copies. State instru- 
mentation desired. 

If you have any earthly use for a waltz I can recommend my " Zeona." This 
number is making a hit for both band and orchestra. I have recently published 
the piece for piano solo and the small instruments. Good orders are coming in 
already for the piece. 

1 trust you used the quartette arrangement of the chorus to "By the Winter- 
melon Vine." 

Yours, truly, Walter Jacobs. 

Matthews Piano CoMrANY. 

Lincnin, \cbr„ January It, 1905. 
Mr. Harry MacDonougii. 

(Care National Phcuiograph ronii)any,) 

Oran(/<\ N. J, 

Dear Sir: I sond you by this mail under separate cover a copy of "Sleepy 
Time." a sonj; of which I am the comiM»sor, and wonld liko to know if it would 
be possil)le \o have you sing it into the ImHsou phonograph. We handle the 
Edison line exclusively and have been asked by hundreds of people why they 
can't get the sonj; for the iihonograph. I thon;;ht it host to write to you as It 
seems that your voice would be better adapted to a song of this kind or tlmt 
you could Kiv(» nie what information' as to who I should go to to have it pro- 
duced. We have sold in Lincoln alone over 1.000 coijies of the song and are 
receiving orders for hundreds from such people as 1^\ .1. A. Forster & Co.. job- 
bers, of Chicago: .Toe Morris. Philadelphia, jobbers, and a great many others 
who have it on their bulletins. 

This week I am sending out about KOO professional copies to leading singers 
wlio sing this style of a song. N(>w if you can't do anything with this, would 
it be asking too much of you to have you liand It to the party of the National 
Phonograph Company, who has this sort of thing in charge. 


I will appreciate it A-ery much and hope I may be able to reciprocate the 
favor in the near future. 

Wisliinja: you a happy New Year, I beg to remain, 
Very respectfully, yours, 

Matthkws Piano Co. 
Per Edward Walt. 

Sol Bloom, Mr«ic PunMSiiKR, 

\cw York, March 17, 1905. 
Walter Miller. Esq.. 

65 Fourth avenue. City, 
My Dear Mr. Miller: I am mailing you under separate cover song and or- 
chestration of •* Easy Stroet." which is very i)opular and having a big demand 
at our ta living-machine department at Simpson Crawford Company's. 

Trusting tliat you will look this composition over and may be able to use it, 
I am, with kind regards, 

Very truly, yours, Sol Bloom, 

Per H. N. McMenimen. 

CuAs. K. Harris, Mrsic Publisher, 

Vew York, April IS, 1905. 
Mr. W. H. A. Cronkhite. 

(Care National Phonograph Company) 

66-69 Fourth avenue, City. 
My Dear Mr. Cronkhite: Your letter of April 12 to Mr. Harris received, 
and in reply to same would state that T wish to thank you very much for your 
kindness in sending us the song ** Daddy Dear." Mr. Harris has written 
Deane & Sons in reference to same, as we would like very much to get the 
publication rights for this song. We told them that we understood in an 
indirect way that they were the publishers. I am in hopes that we will be able 
to get this song, as we like it very much. At the same time it will not conflict 
with the baby song that we have promised you, and I assure you you will 
have this song three mouths before it Is published and ahead of anyone else, 
and believe mo when I tell you that Mr. Harris's new song will be without a 
doul)t the greatest baby song that he has (»ver written, and The most remarkable 
thing of all is that it is not unlike ** Daddy Dear." 

Mr. Harris wislies to thank you for the records you are having made for 
him. and he will appreciate same very much. 
Thanking you again, believe me as ever. 

Yours, very truly, Meyer Cohen. 

Jerome H. Remick & Co., Music Publishers, 

Neio York, May 2, 1905. 
Mr. Kaiser. New York, N. T. 

Dear Mr. Kaiser: I am Inclosing you herewith a couple copies of the sum- 
mer waltz song ** On a Summer Night." that I spoke to you about this morning. 
I would certainly consider tills quite a big favor if you would get this on the 
phonograph records as soon as you i>ossibly can. 

With kindest regards, I remain, sincerely yours. 

Jerome H. Remick & Co. 

Jerome H. Remick & Company. 

New York, May St, 1905. 
Mr. John Kaiser, yew York, 

Dear Mb. Kaiser : Just thought I would drop you a few lines and Incidentally 
inclose you a copy of the new march song, " Bright Eyes, Good-bye," that I am 
more than anxious to have you put on the records. I am Inclosing you two 
copies of the song, #nd would appreciate your giving It your every attention 
and get It on as soon as you possibly can. W'ould also appreciate a few lines 
from you at your convenience regarding same. 
Did you receive the band numbers all O. K.? 

With kindest regards, I remain, very truly, yours, 

Jerome H. Remick & Ca« 


Peoflb*8 Vaudkvuxx Compant, 

New York, March 23, 190L 
National Phonograph Ck)MPANY, 

Orange, N, J, 
Gentlemen: In all of our parlors In this city we have been asked several 
times for the new hit "Since Father Went to Work," companion of "Every- 
body Works but Father ;" which you know was one of our biggest successes in 
the past several months. 

We believe this will be another of the big successes you have records out for. 
and earnestly request that unless you have same In the molds that same be 
listed at the earliest possible moment. 

We do not wish you to infer by this that we are In the least trying to nm 
your business, but merely give this as a suggestion, as that which is profitable 
to us is generally mutual. 

Thanking you in advance for your kind consideration of this matter, we 

Very truly, yours People's Vaudeville Ck>MPANT, 

Per D. Bebnstein. 

Len Spencer's LiTCeum, 
New York, June 5, 1906. 
National Phonogbaph Company, 

19 Fifth Avenue, New York, 
Gentlemkn: We are inclosing herewith advance lead sheet and typewritten 
words of tho song, '* (Mrlie I Jjove You," just received from tjie F. B. Haviland 
Publishing (V»nji)any. as per our agreement with them to send us advance copies 
on the day that they become available. 

Al8(> new issues of the following: "Girlie I I^ove You," ''Remember Yonr 
Dear Old Dad," " Two Roses," ** Julie Cooley," '* The Umbrella Man," " Every 
Cloud Has Silver Lining." ** I've Got to Dance Till the Band Gits Throngh." 

Kindly sign inclosed receipt list, which is our voucher to the publisher tliat 
the work of distril)utl(>n has been properly done. 
Yours, very resi)ectfully, 


Len Spenceb, Oenci^al Manager. 

GxTs Edwards Musk; Purlisiiing Company, 

New York, September 15, 1906. 
Edison Phonograph Works, 

Ma.stcr Rrcord D( jtartnufit. 

Orange, \, J, 

Dkar Sirs : Can not undorstand why so few of the Oiis ICdwards compositions 
are r(Monl<»d this year, and I can un<loiibtedly show you where I have more 
good, substantial, and meritorious compositions than I have ever had. Here is 
the list : ** If a Girl Likt» You Lo veil a Boy Like Mc," " I'll Do Anything hi the 
World for You " (which is raphlly hocoming one of the higgest hits and which 
is heing sung oxtcMislvcly), "Conic Take a Skate with Me" (sung by Blanche 
Rin^). "In a Little Canoe with You." "Two Dirty Little Hands," *' When the 
(ircMMi Leaves Turn to (4old," " Kiss Me Once More G(K>d Night," ** Napoli " (an 
Italian love son;:). "The Ilurdy (Jurdy Man" (with a regular hurdy gurdy ac- 
companiment and the souml of children; this would make an excellent record), 
"You Can't (iive Your Heart to Somebody Else and Still Hold Hands with Me" 
(a pretty little duet), "That's What the Rose Said to Me" and ** I Miss You in 
a Thousand Different Ways" (two new ballads which I will send you as soon as 
they come out) ; the sruig hit of the Lew FiehN's show, " When Tommy Atkins 
Marries l)<»lly (iray," which I would like you to carefully look over and prove to 
your own satisfaction that is greater than my other two hits, " Goo<l-l)ye, Little 
Girl, Gou<M>ye" and "Dolly Gray;" it is great both as vocal and instrumental 

I have two new numbers in the Anna Held show, of which I am sending you 
one, " Mr. Monkey." It is better than " In Zanziljar " song. Also have a song 
in the " Blue Moon " show, "Don't Y'cni Think It's Time to Marry." If you will 
advise your regular vocalist to call here at least once a week I will teach them 


the uewest songs and make orchestrations for same in any key, and in that way 
they will get the songs before they are produced. 

I think if you will look np my past performances you will feel sure* that I de- 
serve more numbers on your catalogues. Under separate cover I am sending 
you a set of regular copies of our publications and a set of vocal and instru- 
mental orchestrations. 

Hoping you will keep in constant touch with the " House Melodious," we 

Yours, very truly, Gus Edwabds. 

Lyon & Healy, 
Chicago, October 22, 1906. 
Dear Mr. Miller : We have waited some little time before deciding to send on 
•' A Garden Matinee," which goes forward to-day, under separate cover. The 
delay was due to our earnest desire to avoid sending you anything that might 
l)rove useless material. 

As you will notice, the number is a little out of the boa. en track, and it is a 
matter of gratification to us that its sale has Justified Its publication. It has not 
only sold well to the general public, but also has been taken up by the more 
prominent piano teachers as material for their advanced students. As it has 
gone over the 10.000 mark and is still going, we hope that it will also prove good 
property for the Edison. 

We are Inclosing with it a two-step by the well-known composer, W. C. B. 
Seoboeck, which promises well, but Is as yet untried. It might be a good Idea to 
file It away until we see how It Is going to work. On the other hand, your judg- 
ment of its merits (or lack of any) would. In our opinion, hit the mark, and we 
would be willing to abide by It. 

The sale of our sheet music is helped materially through the Edison, and we 
feel under obligation to you, very much. 

Thanking you In advance for any courtesies that you may be able to extend, 
we remain, 

Very truly, yours, Lyon & Healy, 

Jno. a. R. Shepabd. 
Mb. Walter Miller, 

(care the Recording I^aboratory), 

National Phonograph Company, New York City, 

Helf & Haoer CJompany, 

New York, February 20, 1907. 
Mr. Cronkhite. City. 

Dear Sib: We are sending you herewith an orchestration of a neat little 
Instrumental number, called "Tle-Ro," which we think would make a good 
record for orchestra. It Is arranged In a light, dainty way, and we are positive 
It will be very effective for your work. We are going after this number, and 
in a couple of weeks will have all the orchestras playing same. 
Hoping you will be able to use this number, we are, 

Yours, very truly, Helf & Hageb. 

E. Nattes, 
New York, June 4, 1907. 
The Edison Male Quartette, 

(Care The National Phonx)graph Company), 

Orange, N, ./. 
Gentlemen : A f(»w days ago I had the pleasure of addressing you four words 
of sincere congratulations for the beautiful and clever Interpretation made by 
you, for Edlstm phonograph, of my ballad entitled, '* When the Roses are in 
Bloom;" and ever since 1 have learned, through the publishers of this number, 
that my letter reached your hands, and that you have duly appreciated the 
truthfulness of my statements In that direction. I have also been Informed by 
the publishers that this ballad Is gaining a wider i)opularlty every day; there- 
fore I conshler It a duty on my part to thank you, once again, for your valuable 
assistance to that end. 

39207—08 ^19 


I now take the liberty of flendfng you, herewith inclosed, the very first copy 
out of my latest ballad entitled, " *Twa8 You/' which I think will meet with 
your approval. Regarding this number, I wish to say that in the event of your 
finding same worthy of your featuring it for the phonograph. If you are kind 
enough to favor me with a photo of your quartette, I shall be more than pleased 
to have a half-tone made of same, and print the latter on the title-page, fumifih- 
Ing you with a number of regular copies. I would also give yon due notices in 
the theatrical papers and send you copies of them. 

Hoping to hear from you favorably, I beg to remain, dear sirs. 

Very truly, yours, R Nattes. 

P. S. — I beg to assure you, most sincerely, that I do not request the favor of 
featuring my ballads from everyone who slugs, but from those who can sing, 
and your name appears at the head of the latter. In my appreciation. — E. N. 

Jerome H. Remick & Ck>., 

Neio York, July 8, 1907. 
Leader of the Orchestra. 

Edison Phonograph Company, City, 
Dear Sir : We are Inclosing herewith a piano copy of our new ballad, ** 'Neath 
the Old Cherry Tree, Swoet Mario," which will not be ready professionally for 
some few days. Therefore we are sending you a manuscript copy of same so 
that you will got the first crack at It. 

Very sincerely, yours. Jerome H. Remick & Co, 

Reimkr Music Publishing Company, 
Asbury Park, N. J., January 28, 1908, 
BJdison Phonograph Company. 

Gentlemen : I write again In regard to the song ** Au Revolr is not Good- 
bye." Try this number out, and I am confident that It will prove what I say 
about It. We have the song well on Its way to ixjpularlty, and selling big 
every day. Orders coming In from all over the country. At our two music 
stores we alone can sell 1,000 records of the song. Illustrated song singers 
are using It now all over, and the slides are the best ever made by the Chicago 
Company. All we ask is to give it a fair tost. I am sure I deserve some 
n^cognition after soiling and pushing Edison goods for the past five years. 
It sooms not, tliongli. Tublishors who don't soli a dollar's worth for you 
are the onos mostly favorod. And why*: We think wo know why. Perhai»s 
we don't. If you will grant njo a personal trial, I will come up and sing this 
mysolf. .lust lo< mo know day and tinio, and I'll ho thoro to prove without 
doubt that tho scnig "Au Hovoir is not (iood-hyo" is the most beautiful sen- 
timental son;: on th<» markot to-day. I have all and know what I am talk- 
ing about. With host wishes for your continued success, I am, 
Very truly, yours, 

Lester Chas. Reimeb. 

Ropresoiitativo Legare. Your idea, then, is that as the manufacture 
of records is increased and those records are distributed throughout 
the country l>y the manufacturer that does not lessen the sale of sheet 

Mr. Dyer. That is exactly my idea. Not only is the sale of sheet 
music not lossenod, hut I midorstand it is greatly helped by it. 

The Chairman. Have you the statistics of the sale of sheet music? 

Mr. Dyer. Xo, sir. 

Mr. OX^»nnell. 1 have some figures on that point from the year 
1900 to 11)05 and will submit them. 

The Chairman. A^^ry well. | To Mr. Q-Connell.] Would you like 
to have your ligures go in with your own speech or with Mr. Dyer's? 

Mr. Dyer. The figures might, I think, more appropriately go in 
to the record at this point. They are taken from the census report. 

Mr. O'CoNNELL. That is satisfactory to me. 



[Extract from the Census Reports, 1905.] 

Bulletin 79. 

[Music sheets manufactured.] 




Value of product 



Bulletin 82. 





Value of product- 



,rSS°ttc. Piano.. «^ 









Note. — These are the last reports. 

Mr. Dyer. Among the letters which I have just referred to, I 
wish to call your particular attention to one from the firm of Lyon & 
Healy, of Cnicago. I do so because Mr. Bowers, of that firm, was 
one of the strongest advocates of the ^olian proposition, and was, 
I think, instrumental in*securing the signing or of the iEolian 
contracts. Naturally, the letter was not written by Mr. Bowers, but 
by his advertising man. He says: 

We have waited some little time before deoiding to send on "a Garden Mati- 
nee,'* which goes forward to-day, under separate cover. The delay was due 
to our earnest desire to avoid sending you anything that might prove useless 
material. As you will notice, the number is a little^ out of beaten track, and 
it is a matter of gratification to us that its sale has Justified its publication. It 
has not only sold well to the general public, but also has been taken up by the 
more prominent piano teachers as material for their advanced students. As 
it Is gone over the 10,000 mark and is still going, we hope that it will also 
prove good property for the Edison. 

You gentlemen will note that there was no question in the mind of 
the writer of this letter as to his sheet-music business being preju- 
diced by plionographic reproduction; in fact, he was obviously most 
anxious that we should take it. Now, note particularly, what he 
says in conclusion: 

The sale of our sheet music is helped materially through the Edison, and 
we feel under obligations to you, very much. 

Representative Washburn. What particular applicability to the 
proposition before us have the figures which you have quoted relat- 
ing to the sale of sheet music? Do you mean to suggest that the sale 
of sheet music has been helped by reproduction in mechanical instru- 

Mr. Dyer. Yes, sir. I think that is a conclusion that can fairly 
be drawn. You understand, of course, that so far as the proposition 
Ixsfore us is concerned I regard it as unconstitutional and as opposed 
to public poli(;y. But if such were not the case it would be unnec- 


essary because the composers are being actually helped and are prof- 
iting by the work of the manufacturers. 

Representative Washburn. But your proposition is that the repro- 
duction of this music on mechanical instruments has actually pro- 
moted the sale of sheet music. 

Mr. Dyer. Yes, sir; I believe that is true, although our opponents 
assert that we have destroyed the sale of sheet music. 

The Chairman (to Representative Washburn). Has the House 
committee not received letters stating that the sale of sheet music 
was being destroyed by these mechanical devices? 

Representative Washburn. Yes. 

Mr. Dyer. If that fact was definitely proved, I would admit that 
the composers have an ethical right here. 

Mr. Walker. The introduction of automatic mechanical instru- 
ments so far from taking away from composers anything that they 
had, has largelv increased their revenue, so that they have nothing 
ethical to complain of. 

Mr. Dyer. That is my position exactly. But even from an ethical 
standpoint, a situation is presented which must not be lost sight of 
and which frequently comes up in connection with patents. It is 
a point that has been often passed upon by the courts?. Two men, 
let us say, jointly make and patent an invention. One of them com- 
mences its manufacture and makes a million dollars profit. The other 
joint inventor and joint patentee makes nothing. Has not the latter 
an ethical right to a part of tlieprofit of the patent on the invention 
which he helped to create? Why should his partner in the enter- 
prise be entitled to take all the profits and he receive none? But 
m each of these cases the courts have said, " No," because if the man 
who had manufactured the invention instead of making a million 
dollars had lost a million dollars instead, he would have the same 
ethical right to claim from his partner a contribution for his share 
of their loss'. And this is the situation here. Although the com- 
posers arc very anxious that the manufacturers should divide their 
profit*^, we have not yet heard of any willingness on their part to 
contribute for any losses which might he incurred in using their 
compositions. And it would of course he iuij)()ssil)lc to provide any 
feasible way by which this coidd be done. This is by no means 
an iuiagiuary situation. Mr. P<'ttit has referred to the fact that 
records of his company may cost a thousand dollars or more before 
a single one is sold, so that it is readily j)()ssil)lc that very considerable 
losses may be incurred in connection with special compositions. If, 
therefore, we are to depart from the domain of practical legislation 
and are to attempt to define and secure ethical rights, the manu- 
facturers have some ethical rights themselves, one of which is that 
if they are to be called upon to share their profits with composers, 
the composers should also be called upon to share any losses. 

If after all that shall 1m» said, the counnittees believe that the 
proposition is both constitutional and expedient, and that something 
should be done for the authors and compo-ers, we will of course 
submit willingly and as cheerfully as possible. But I think it ought 
not to l>e done by way of a single omnibus provision in a bill that 
deals with so many other matters. It seems to me that the proper 
protection of the many interests involved can be secured only by 


means of a separate bill that will surround copyrights of this char- 
acter with all the safeguards by which the public is now protected 
from the grant of the improper and improvident patents. The rights 
granted by patents are, in fact, much more restricted than those 
which it is proposed to grant by way of mechanical copyright. A 
situation would l>e presented in the patent practice that would be 
analogous to that which would be presented here, if the owner or 
proprietor of an invention — not the inventor, but the proprietor or 
assignee — had only to make application in the Patent Omce, pay a 
fee of 50 cents, and have granted to him a patent that would secure 
a monopoly perhaps for seventy-five years, if not more. If you are 
going to grant or provide for the granting of these mechanical copy- 
rights, is it not proper that you should surround the grant by all 
necessary protection as will prevent the public from being imposed 
upon by frauds? I have prepared the rough skeleton of a bill em- 
bodying some of my ideas as to what ought to be done, and have sub- 
mitted it to Mr. Currier. 

The Chairman. Would you like to put that bill in the record? 

Mr. Dyer. Yes; I would. 

The bill referred to by Mr. Dyer is as follows: 

Be it enacted hy the Senate and House of Representatives of the United 
States of Amerii'a in Congress assembled. That every citizen of the United 
States who 1ms written, composed, or produced any new and original literary 
or dramatic work or musical composition not linown or produced by others 
before his writing, comt)osltion or production thereof, and not published, pro- 
duced, or performed In this or any foreign country, before his application, may, 
upon the payment of a fee of five dollars and other due proceedings had, obtain a 
mechanical copyright therefor. 

Sp:c. 2. In the case of a literary or dramatic work or musical composition 
which shall l)e the Joint creation of production of two or more persons, a 
mechanical copyright shall be Issued to the joint authors or composers, and the 
application therefor shall be made by them jointly. 

Sec 3. All mechanical copyrights shall be Issued In the name of the United 
States of America, under the seal of the Library of Congress, and shall be 
sl;xiied by the Librarian of Congress or the registrar of copyrights, and they 
shall be recordcnl in the Library of Congress In books to be kept for that 

Sec. 4. Every mechanical copyright shall contain the title of the literary 
or dramatic work or musical cr)mix)Hltion and a grant to the author or composer 
or to the authors or comi)OHers, as the case may be, his or their heirs or assigns 
for the term of ten fears, of the exclusive right, subject to the restrictions of 
this act, to make, sell, distribute, or let for hire, any device, contrivance, or 
appliance esiKvially adapted in any maimer whatsoever to reproduce to the ear, 
the whole or any material iwirt, of the copyrighted work or composition. 

Sec 5. Every mechanical copyright shall date from the day on which the 
application therefor Is received at the office of the Librarian of Congress. 

Sec 6. The applicant for a mechanical copyright shall make oath that he does 
verily believe himself to be the original and first creator, author, or comi)oser 
of the writing or the literary or dramatic work or musical comi)osltlon for 
which he solicits a mechanical co[»yrlght: that he does not know and does not 
believe that the same was ever before known, written, produced, or published, 
and shall state of what country he is a citizen. Such oath may be made before 
any person within the United States authoriz(»tl by law to administer oaths, or, 
when the applicant resides in a foreign country, before any minister, charg<^ 
d'affaires, consul, or commercial agent holding a commission under the Govern- 
ment of tlie T^nltt^l States, or before any notary public. Judge, or magistrate 
having an oflicial seal and authorized to administer oaths in a foreign country 
in which the applicant may be, whose authority may be proved by certificate 
of a diplomatic or consular officer of the Unitetl States. When the application 
shall be made by joint authors or comi>oser8, a like oath shall be made by each 
of them. 


Sec. 7. On the filing of any such application and the payment of the fee 
required by law, the Librarian of Congress shall cause an exa mi nation to be 
made of the form of sjiid applicaMon. and if on such examination it shall a|)- 
pear that the claimant is Justly entitled to a mechanical copyright under the 
law, the Librarian shall issue a mechanical copyright therefor. 

Sec. 8. Mechanical copyright may be granted and issued to the assignee of 
the author or composer, but the assignment must first be recorded in the Li- 
brary- of Ongress. And In all cases of an application by an assignee for the 
Issue of a mechanical copyright, the application shall be made by and shall 
be accompanied by the oath of the author or composer. 

Sec. 9. When any i)erson, having written or composed any new and original 
literary or dramatic work or musical composition, for which a mechanical 
copyright might have been granted, dies before a mechanical copyright is 
granted, the right of applying for and obtaining the mechanical copyright shall 
devolve on his executor or administrator in trust for the heirs at law of the 
deceased. In case he shall have died Intestate; or if he shall have left a will 
disposing of the same, then in trust for his devisi>es, in as full manner and on 
the same terms and conditions as the same might have been claimed or en- 
joyed by him In his lifetime: and when the application Is made by such legal rep- 
resentatives, the oath or affirmation required to be made shall be so varied 
in form that it can be made by th(»m. Th<* executor or administrator duly 
authorized under the law of any foreign country to administer upon the estate 
of the deceased author or comiwser shall, in case the said author or com- 
poser was not domiciled in the United States at the time of his death, have the 
right to apply for and obtain the mechanical copyright. The authority for 
such foreign executor or administrator shall be proved by certificate of a dlp>- 
lomatic or consular officer of the United States. 

Sec 10. Every mec*hanical copyright or any interest therein shall be as- 
signable in law by an Instrument in writing, and the grantee-of any mechanical 
copyright, or his assignees or legal representatives, may in like manner grant 
and convey an exclusive right under his mwhanical copyright for the whole, 
or any specified part of the United States. The assignment, grant, or conveyance 
shall be void as against any subse<iuent i)urchaser or mortgage, for a valuable 
consideration, witliout notice, unless it is recorded in the Library of Ck)ngre88 
within three months from the date thereof. If any such acknowledgment, grant, 
or conveyance of any mechanical copyright shall be acknowledged before any 
notary public of the several States or Territories, or the District of Columbia, 
or any c-ounnissioiuT of n rnit«»d States circuit court, or b<»f<»re any secretary of 
legation or consular orticcr, authoriztd to admiuister oaths or perform notarial 
acts under stn-tion sevent«MMi hundn^d and fifty of the Revised Statutes, the 
certificate of such acknowledgment, under the hand and olHcial seal of such 
notary or other ofiicer, shall i)e i)rima facie evidence of the ext^nition of such 
assignment, grant, or conv<»yance. 

Skc. 11. It shall l>e the duty of all grantees of mechanical copyrights and 
their assignees and le'-:al representatives, and of all i»ersons making or vending 
the printed w<n"k or nnisical coniiM)sition or any device, contrivance, or appli- 
ance espe<'ially adapt<Ml in any manner wliats<>ev<'r to reproduce to the ear, 
the whole or any material part of such work or musical comi)Ositi<»n, to give 
sufiiclent notice to tlie pul>lic tliat the "siune is protcH'ted i>y nie<*hanical copy- 
right, either by printing conspicuously thennMi the words *• protected by me- 
chanical copyright." together with the day and year tlie ni(M-hanical copyright 
was grant«Hl: or wIhmi, from the character of the article, this can not be done, 
l)y alfixing to it. or to the package wherein one or more of them is contained, 
a label containing tlie like notice; and in any suit for infrin^'enient. by the party 
failing so to mark, no damages shall be re<'(»vered by the plaintiff, except on 
proof that the defendant was duly notifiiMl of the infringement and continued 
the infringing acts after such notice. 

Skc. 12. Every person who, in any manner marks upon anything made, used, 
or sold by him, for which he has not obtained a mechanical copyright, the 
name ur imitation of the name of any person wlio has ohtained a mechanical 
copyright therelVw, without the consent of tiie grantee of such mechanical 
copyright or his assi^jns or legal representatives, or In any manner marks 
upon or afiixes to any such mechanically copyrightt^l arti<"le, device, or comi)o- 
sition, the words " i>rotectetl by nuvhanical copyright," or any words of like 
lmiK)rt, with intent to imitate or counterfeit the mark or device of the grantee, 
without having the li<'ense or consent of such grantee or his assigns or legal 
representatives, or who, in any manner, marks upon or afllxes to an uncopy- 


righted article, work, or composition, the words ** mechanical copyright," or 
any words fmporting that the same Is mechanically copyrighted, for the pur- 
pose of deceiving the public, shall be liable for every such offense to a penalty 
of not less than ten dollars with costs, one-half of such penalty to the person 
who shall sue for the same and the other to the use of the I'Uitpd States, to be 
recovered l)y suit in any district court of the United States within whose juris- 
diction such offense may have been committed. 

Sec 13. Damages for the infringement of any mechanical copyright may be 
recovered by action on the case in the name of the party interested, either as 
grantee or assignee. And whenever In any such action a verdict is rendered 
for the plaintiff, the court may enter Judgment thereon for any sum above the 
amount foiuid by the verdict as the actual damages sustained, according to the 
circumstances of the case, not exceeding three times the amount of such verdict, 
together with the costs. 

Sec. 14. In any action for infringement the defendant may plead the general 
issue, and, having given notice in writing to the plaintiff or his attorney thirty 
days before, may prove on trial any one or more of the following special matters : 
First, that the literary or dramatic work: or musical composition had been 
created, published, produced, or was known to others prior to the supposed 
writing, creation, production, or composition thereof by the author or composer ; 
second, that the supix)sed author or composer was not the original and first 
creator of any material or substantial part of the literary or dramatic work 
or musical composition, protected by the musical copyright ; and third, that the 
literary or dramatic work or musical composition was known to the public prior 
to the application for musical copyright. And in notices as to proof of previous 
creation, knowledge, publication, or production of the work or composition 
copyrighted, the defendant shall state the names and residences of the persons 
alleged to have created or produced, or to have had the prior knowledge of the 
work or composition copyrighted, and where and by whom It had been pub- 
lished or known; and if any one or more of the special matters alleged shall be 
found for the defendant. Judgment shall be rendered for him Avlth costs. And 
the like defenses may be pleaded in any suit in equity for relief against an 
alleged infringement, and prpofs of the same max be given upon like notice 
in the answer of the defendant and with the like effect. 

Sec. 15. The severfel courts vested with Jurisdiction of cases arising under 
the patent laws shall have power to grant injunctions according to the course 
and principles of courts of equity, to preA'ent the violation of any right se- 
cured by a mechanical copyright, on such terms as the court may deem rea- 
sonable; and upon a decree being rendered in any such case for an Infringe- 
ment the complainant shall be entitled to recover, In addition to the profits to 
be accounteil for by the defendant, the damages which the complainant has 
sustained thereby; and the court shall assess the same or cause the same to be 
assessed under its direction. And the court shall have the same jjower to in- 
crease such damages in Its discretion as Is given to Increase the damages 
found by verdicts in actions in the nature of actions of trespass upon the case. 
But in any suit or action brought for infringement of any mechanical copyright 
there shall be no recovery of profits or damages for any infringement com- 
mitted more than three years before the filing of the bill of complaint or the 
Issuing of the writ in such suit or action. 

Sec 16. Any manufacturer of devices, contrivances, or appliances, espe- 
cially adapted in any manner whatsoever to reproduce to the ear, literary 
and dramatic works or musical compositions, such as perforattnl music rolls or 
talking-machine records, shall be entitled to make use of the whole, or any 
materal part of the work or composition covered by any mechanical copyright, 
subject to the following provisions: 

First. The manufacturer shall notify the Librarian of Congress in writing 
of the manufacturer's Intention to use the subject-matter of the mechanical 
copyright, giving the title thereof and the difte on which the copyright was 

Second. The Librarian of Congress shall thereupon promptly communicate 
with the grantee of such nu^chanlcjil copyright or with the assignee of rword 
thereof, advising such grantee or assignt*e of such notice from the manufacturer 
and of the title and date of the mechanical coi»yright lntende<l to be so used, 
and the Librarian of Congress shall thereupon require such grantee or assignee 
to produce proof of ownership of the mechanical copyright and of authority 
to rcjceive royalties from the manufacturer for Its use. In case of dispute 


as to the ownership of any mechanical copyright the Librarian of Gongrem shall 
determine the question under such rules and regulations as he may prescribe, 
and his decision in the matter shall be final. 

Third. As soon as practicable the Librarian of CJongress will notify the 
manufacturer in writing of the present owner of the mechanical copyright to 
be used and to whom such manufacturer shall pay royalties. 

Fourth. The royalties to be paid by any manufacturer for the use of any 
mechanical copyrighted work or musical composition shall, unless agreed 
upon by contract between the manufacturer and copyright proprietor, be 
based on the actual list selling price to the public of the deylces or appliances 
embodying the copyrighted work or composition, and In every ease shall be 
three per cent of such list selling price regardless of the price at which sach 
Idevices or appliances may be sold by the manufacturer to agents. Jobbers, or 
dealers, and regardless of any discounts which may be allowed therefrom. 

Fifth. The manufacturer shall keep an accurate record of each device or 
appliance embodying the mechanical copyright which may be made and sold 
and from and on which record the above royalty shall be based. Said reconl 
shall be open at all convenient times, not ofteuer than once a month, to the 
inspection of the copyright proprietor or his duly authorized representative. 

Sixth. The royalties payable under this act shall be paid by the manufttcturer 
to the copyright proprietor or his nominee in writing, once every three months, 
by the manufacturer, and each such statement shall be accompanied by a state- 
ment of the number of appliances or devices made and sold utilizing the copy- 
righted work or composition, and such statement shall be sworn to as true and 
correct by the manufacturer, or if the manufacturer be a corporation by some 
officer thereof having knowledge of the facts. 

Sec. 17. Whenever any manufacturer shall apply for leave to use any me- 
chanical coi)yrlght, as provided for in the preceding section, and shall comply 
with the various conditions thereof, no action for Infringement of the me- 
chanical cor>yrlght shall be maintained either against the manufacturer or any 
one selling or using the device or appliance made and sold by the manufacturer 
and embodying a mechanical copyright; and no action shall be maintained 
against a manufacturer nor injunction granteil where it shall b& shown to the 
satisfaction of the court that the manufacturer's use of any mechanical copy- 
right was unwitting and steps are taken by the manufacturer promptly to 
comply with the requirements of the preceding section. 

Sec. 18. The rights hereby granted for mec»hanlcal copyrights are independent 
of other rights in literary or dramatic works or niuslcal compositions to which 
the author may be entithnl nn<hM* the copyright statutes. 

Sec. 11>. Tlie rights juul privileges granted by this act shall be extended to 
authors and composers who may be citizens or subjects of a foreign State or 
nation which grants either by treaty, convention, agnn^nient, or law, to citizens 
of the United States, the benefit of copyright on snl>stantlally the same basis 
as Is granted under this act; or when sn<'h foreign State or nation is a jwrty to 
an international agreement which provhles for reciprocity in the granting of 
copyright, by the terms of which agreement the Tnited States may at Its 
j)leasun» htMonie a party thereto. The existence (»f the rtK'Iprocal condlticms 
aforesiiid shall l)e deterniined by the President of the Unlttnl States by prcK'la- 
niation made from time to time ha the purposes of this act niay re<piire. 

Skc. 2(). Tliat all actions arising under this act shall be originally cogulzable 
by the circuit courts of the TnittHl States, the district court of any Territory, 
the snurenie court of the IHstrict of Columbia, the district courts of Alaska, 
Hawaii, and Porto Kico, and the courts" of first instance of the Philippines. 
Actions under this act may be institnttHl in the district of which the defendant 
Is an inhabitant or in the distri<-t wliere the violation of any provision of this 
act has occnrnMl. and where the defendant has a regular and establlshtHl 
j)lace of l»usiness. Any such court, or the judge then^of, shall have power, upon 
1)111 in equity {\Uh\ by any party a^'irrieved. to grant an injunction to prevent the 
violation of any ri;;lit secnre<l by said laws, ai-cording to the course and prln- 
cii)les of courts of e<inity, on such terms as said <*ourt or judge may deem 
reasimabh*. Any Injumtion that may l>e granted restraining and enjoining the 
doing of anythinir fnrlodilen by this act may be served on the parties against 
whom sjicli injunction may be granted anywhere in the I'nlted States, and shall be 
operative throughout the Tnited States ami shall be enforceable by proceedings 
In contempt or otherwise by any oth<»r court or judge pos.sesshig jurlwlictlon of 
the defendants; but the defendants or any or either of them may make a mo- 
tion to the proper court of any other district where such violation is alleged 


to dissolve said injunction, upon sticb reasonable notice to the plaintiff as the 
court or Judge before whom such motion shall be made shall deem iiroper, 
service of said motion to be made by the plaintiff in question or his attorney 
in the action. Said courts or Judges shall have authority to enforce said 
injunction and to hear and determine a motion to dissolve the same as herein 
provided as fully as If the action were pending or brought in the district hi 
which said motion is made. The clerk of the court granting the injunction 
shall, when required so to do by the court hearing the application to dissolve 
or enforce such injunction, transmit without delay to said court a certified 
copy of all the papers on which the said injunction was granted that are on 
file In his office. 

Sec. 21. The final orders, judgments, or decrees of any courts mentioned hi 
the first preceding section may be reviewed on appeal or writ of error in the 
manner and to the extent now provided by law for the review of cases finally 
determintHl in said courts, respectively. 

Sec. 22. That in all recoveries under these acts full costs shall be allowed. 

Sec. 23. That nothing in this act shall prevent, lessen, impeach, or confound 
any reme<ly at law or In equity which any party aggrieved by any infringement 
of a mechanical copyright might have had if this act had not been passed. 

Sec 24. The manufacturer of any device or appliance adapted to mechanic- 
ally reproduce to the ear the whole or material part of a literary or dramatic 
work or musical comi)osition, and who shall comply with the retpiirements of 
section 16 of this act, shall, If the recording of the work or comiK>sition involves 
an original and artistic arrangement and adaptation, be entitled to a me- 
chanical copyright thereon, subject to and upon complying with the following 
conditions : 

(1) The manufacturer shall make application in writing for such mechanical 
copyright, giving his name, citizenship, and address if an individual: the 
names, citizenship, and addresses of all the members if an association or firm, 
and the State of incorporation and domicile if a corporation. 

(2) A fee of fifteen dollars shall be payable with each application. 

(3) Two copies or samples of the device or appliance embodying the me- 
chanical copyright shall be dei)08ited' with the Librarian of Congress after the 
same shall have been placed upon the market for sale in the United States, and 
shall be preserved by the Librarian of Congress in suitable archives for that 

(4) The term of any mechanical copyright which shall be thus granted to a 
manufacturer on the device or appliance utilizing the copyrighted work or com- 
Ijosition shall expire with the mechanical copyright on such work or compo- 

Mr. Dyer. Under such a bill as I propose the application for a 
inechanical copyright must be made by the composer hhnself, just 
as a patent application must be made by the original inventor. The 
composer nmst be an American citizen, unless, of course, equivalent 
rights are granted to Americans in foreign States, in which case the 
citizens or subjects of those States can receive the benefit of the law. 
The applications should be accompanied by an oath made by the 
composer, in which he shall swear that he is the first and original 
composer and that the composition has never before been known or 
publislied. Inventors are required to make similar oaths. Why 
should there be any discrimination in favor of composers? The fee 
should be a substantial fee. Inventoi-s pay $35 to the Government 
for each patent. Why should composers have to pay only a fee of 50 
cents? This is not a fair and equitable charge, when we consider 
that under a mechanical copyright composers would obtain a larger 
measure of protection and for an enormously greater time than m- 
ventors. There should be a provision providing for the assignment 
of copyrights that would be similar to the provisions in the patent 
law; there should be something that would prevent Mr. Sousa or 
Mr. Herbert from making broad, general, and indefinite assignments 
of their works, but permitting, them, of course, to make individual 


assignments of each individual work. The bill should include a pro- 
vision as to universal royalties, because unless this is done the mo- 
nopolization of current music becomes readily possible, and the result 
of that would be not only harmful to the public and to the composers, 
but it would place the smaller manufacturers at a tremendous disad- 
vantage. We hope this feature will not be left out if the bill is to 
be adopted. If the proper provisions are made and the necessary 
safeguards are introduced, the honest and meritorious composers will 
be benefited and the public will not be particularlv harmed. They, 
at least, will know that they are paying royalties only on the bona fide 
article, because the composer must make oath that the composition 
was composed by him and that it was never known before. 

How much time have I, Mr. Chairman ? 

The Chairman. You have ten minutes yet, sir. 

Mr. Dyer. I have written out a few reasons why I think a sepa- 
rate bill somewhat along the line I have proposed should be adopted, 
and as these are in short paragraphs I will read them. 

(1) The question of mechanical copyright is an entirely distinct 
and separate subject-matter, involving independent considerations 
and formalities from an ordinary copyright. To attempt to combine 
the two species in a single bill would be confusing and no doubt 
would result in constant litigation. 

(2) A separate bill can be carefully framed so as to fairly protect 
all interests without delaying the passage of the main copyright bill, 
the importance and desirability of which appear to be admitted by 
all. And it does appear to me, speaking parenthetically, to be unfor- 
tunate that a bill that seems to be so generally desired by all the au- 
thors and the literary peo})le of this country should be delayed in its 
passage by a rather sordid commercial struggle, such as we have been 
having on this question. I should like to see the main bill passed. 

(3) If the proposition of mechanical copyrights is unconstitu- 
tional, as I firmly believe it is, the separate bill would fall alone with- 
out possibly carrying with it the whole fabric of the copyright law. 

(4) It has the tremendous advantage of ])utting the composers on 
guard as to their rights, since in eveiy cnsi^ a formal a])i)licatioii will 
have to be signed and a formal oath will have to be executed, and in 
caj* of transfer a formal assignment will have to be made. 

I might say in passing that at the ])res(Mit time the composer in 
practically every case simply sends his music to the publisher, who 
attends to tlie formalities of the coinrighl. Under a separate bill 
the publisher, while being free to obtain coinright in the usual 
way, would have to go back to the composer if he wished to secure 
a mechanical copyright. He would have to i)resent an application 
to the composer and say '' Please sign this,'' and he would have to 
present an oath to the composer and say, " Please swear to the truth 
of these facts." and he would have to i)resent an assignment to the 
composer and say ''Here is an assignment; please execute this.-' 
Naturallv, the comi)Oser would ask " ^^ hat are these papers that I am 
signing?^' and in this way complete understanding of the matter 
could be obtained by the composer, which I am sure is not the case 
now. Under existing conditions, when a composer turns over his 
compositicm to a publisher the latter attends to all formalities of 
securing the copyright, and in many instances — I presume in most in- 
stances — composers do not know the rights which the publishers have 


secured. If, however, the composer in each case has the matter 
clearly brought home to him, there would be a more reasonable hope 
that the composer and not the publisher would be primarily benefited 
by the mechanical copyright law. The ^eat cry for this legislation 
has been to grant to the composer the rights to which they are en- 
titled. I-«et us take the publishers at their word and do everything 
in reason to see that the composers receive the benefits of the law. 

(5) The manufacturer would have a fair assurance that he was 
paying royalties to a person honestly entitled to receive them and not 
to a person who may have stolen the composition from some one else 
or from the prior art. Examples of this sort have been brought to the 
attention of the committee where it was shown that well-known com- 
positions were plagiarized. Under existing conditions, manufac- 
turers using those copyrights would have to pay royalties; but under 
a separate bill, having the proper safeguards, that, would not be. 

Now, as to the question as to the constitutionality of a provision in 
any bill relating to universal royalties. I would like to make one or 
two statements on that point. I think this is a perfectly constitu- 
tional provision, and I do not at all agree with Mr. Burkan, who 
argues that any rights which Congress shall grant must be exclusive, 
and that to provide for universal royalties would be the granting of 
less than an exclusive right. Admitting that this is so, what does it 
prove ? Congress undoubtedly can ^ant any rights that are less than 
exclusive rights. If his argument is correct, then since he contends 
that composers are entit?led to mechanical rights whicli have not yet 
been granted to them, the existing copyright law must be unconsti- 
tutional, because it does not include exclusive rights, and since it is 
impossible for the human mind to foresee every use to which music 
might be put, no bill would be constitutional because it would l)e 
humanly impossible to provide exclusive rights. Now, in the case 
of patents, the rights granted are not exclusive, but are strictly lim- 
ited to the right to make, use, and sell the patented invention, and 
the grant is surrounded by many conditions which must be complied 
with; for instance that the invention has not been in public use for 
more than two years, and that it has not been abandoned. 

Representative Leake. Has any country applied a provision for 
universal privilege? 

Representative Currier. Canada has a provision in its law that a 
license must be granted at a reasonable price or the patent can be 

Representative Leake. But this is not a universal privilege, such as 
you claim here. Does any country allow anyone to use a patent or 
copyright upon payment of compensation to tne owner? 

The Chairman. Italy has a copyright for life, or forty years, with 
the privilege of renewal. 

Representative Leake. But no compulsory compensation law? It 
was suggested a little while ago that no country in the world had ever 
extended the copyright law to mechanical devices. I want to know 
whether any country has extended the copyright law to mechanical 

Mr. Dyer. That is so, I believe, in Italy and to a limited extent in 
France. In Great Britain the patent law practically provides for 
universal royalties under certain conditions. 


Referring now to the point that the rights ffranted by Congress to 
patentees are not exclusive rights, but are siibject to reasonable re- 
strictions based on considerations of public policy, all patents, though 
granted by the Federal Government, are subject to the police power 
of the various States. In one case the supreme court of the State of 
Indiana aflSrmed the constitutionality of an act fixing the price at 
which a patented invention should be sold to the public. 

The Chairman. In revising your remarks you will please refer to 
such case. 

Mr. Dyer. Yes, sir; I will do so. The case in question is Central 
Union Telephone Company v, Bradbury (106 Ind., 1). In that case 
the State legislature of Indiana fixed the price at which telephones 
should be leased in the State. The telephone companv claimed that 
its apparatus was patented and that its rights were exclusive and that 
it could charge what it saw fit for the same. But the supreme court 
of Indiana affirmed the constitutionality of the act and held that it 
was within the power of the States to determine the price which 
should be charged by patentees for the patented apparatus. 

Representative Leake. I want to get this clear in my mind. As I 
understand it, this is a property right that has not yet been extended 
to authors. The idea that I get from your remarks is that it is a 
thing to be used in common. Now, what reason can you advance for 
applying that proposition to the reproduction, for example, of songs 
that would not equally apply to books, trade-marks, or patents! 
Why should we adopt a policy to songs that we have never adiopted as 
to books, trade-marks, or patents? 

Mr. D\t:r. If an author or composer writes a piece of music and 
has it copyrighted, and the phonogi'aph companies make a lar^ 
amount of money out of it, and in doing so destroy the sale of the 
sheet music so that the coni})oser makes nothing, I think he ought to 
be paid sometliing. But this is not the situation, and it is impossible 
that there should be any sale of records of the composition without 
there being a corresponding sale of the slie(»t music. Each may help 
the other, hut phonograph reproduction is certainly a powerful 
stimulus to the sale of sheet music. Perhaps tliere is no reason 
logically why this provision of universal royalties should not apph^ to 
books, frade-nuuks, and patents, and souie day it may be necessary 
to so modify those laws, to prevent the evil effect of centralization 
and monopoly. But here we are confronted with a serious practical 
condition. The j)hono<rraph companies have lawfully built up large 
enteri)rises along a definite line — the supi)lying of current music to 
the public — an(l it is imjKU'tant that the legislation should be so 
framed as not to destroy that busiuess. 

Representative Leake. AVhen you once recognize a thing as a right 
in trade-mark owners and inventors why should you not recognize it 
in authcn-s? 

Mr. Dyer. I do not recognize it any more than did the Supreme 
Court in the case of Baker ?'. Selden. In that case a man invented 
a new systcMu of bookke(»ping which he described in a copyrighted 
book, and the Supreme Court said that the copvright should go only 
to the book itself and not to the art as described iu the book. 

Representative Leake. How many ^^ears ago was that? 

Mr. Walker. In 1880. 


Mr. Dter. You are not here to grant bounties, but to pass consti- 
tutional laws. 

Representative Leake. But new conditions are arising all the time, 
and there is no reason why the court should not so hold under the 
present conditions, if that term meant that it ran for a year, for ex- 

Mr. Dyer. The Constitution says that all copyright laws shall have 
for their primary object the pronation of science and the useful arts. 
Congress has already extended the meaning of the word " writings " 
to include photographs, maps, charts, statuary, and many otiier 
things, but they have all been something that could be seen and that 
(conveyed some intellectual idea through the sense of sight. This is 
the first time that an attempt has ever been made to depart from this 
appeal to that particular sense and to include other senses. When 
we once depart from this limitation we have passed the danger point. 

I thank you gentlemen for your attention, and with your permis- 
sion I will include at the conclusion of my remarks a short statement 
in which my position is more concisely expressed. 

Representative Barchfbld. Your company has moving-picture 
rights ? 

Mr. Dyer. Yes. 

Representative Barchfeld. And you are a respecter of copyrights? 

Mr. Dyer. We try to be. 

Representative Barchfeld. Can not you, as the representative of 
your company, do s